Marriage with minor Muslim girl not excluded from Pocso: Kerala HC

The Kerala high court has held that marriage with a minor from the Muslim community is not excluded from the ambit of the Protection of Children from Sexual Offences (Pocso) Act and a husband who has physical contact with his minor wife would be liable under the Act.

The single bench of justice Bachu Kurian Thomas on Friday ruled that if one of the parties is a minor, offences under the Pocso will apply while dismissing the bail plea of an accused, who was arrested for raping a 16-year-old girl from West Bengal who later turned his wife. According to the prosecution, the accused abducted the minor and had sex with her several times. Later, the 31-year-old married the girl in question.

The accused contended that he was legally married to the girl and the Muslim personal law board permits marriage of girls from the community once they attained puberty and he cannot be prosecuted under the Pocso. He argued that he had married the girl in March 2021 and had made her his legal partner under personal laws applicable to them. He also cited earlier judgments from Haryana, Delhi and Karnataka high courts to buttress his claim. But the court refused to agree with these claims.

“If one of the parties to the marriage is a minor, irrespective of validity of marriage or otherwise, offences under Pocso Act will stand. With respect to the learned judges (from other courts mentioned) I am unable to agree to the proposition laid down in those decisions that an offence under the Pocso will not get attracted against a Muslim marrying a minor,” the judge observed.

The court noted that the Pocso Act was a special enactment and advances and progress achieved in societal thinking have resulted in the enactment. This special statute was enacted based on principles arising out of jurisprudence relating to child abuse. The court said the legislative intent reflected through Pocso Act was to prohibit physical relationship with a child, even under the cover of marriage.

“A child marriage compromises the growth of the child to her full potential. It is a bane of society,” the court observed while dismissing the bail plea of the accused.