Personal Laws Not Above POSCO: Karnataka HC denied bail
While hearing the bail petition of the person accused for kidnapping and raping a minor girl, the bench headed by Justice K Natarajan held that the personal laws cannot override the special enactments such as Protection of Children from Sexual Offences Act (POCSO), Child Marriage Restraints Act or general laws like Indian Penal Code (IPC) when it comes to heinous offences like rape or marriage with a minor girl. The person was charged under Sections 363, 343, 114, 506 and 376 read with Section 34 of the Indian Penal Code and sections 4, 17 and 18 of the POSO Act and sections 9 and 10 of the Child Marriage Act.
Disregarding the fact that second marriage is permitted under the Mohammedan Law, a Muslim man will be liable under POSCO and IPC if he marries a minor girl and have physical relationship with her. The consent of the girl and the religion of the man committing such heinous crime will be immaterial. The court clearly specified that even if the girl voluntarily goes with the accused that will amount to abduction or kidnapping under Section 363 of IPC.
The religion doesn’t give right to Mohammedan to marry a minor girl by enticing and abducting her- the court highlighted
FACTS OF THE CASE:-
A mother of the minor girl aged 15 years lodged a complaint on October 05, 2020 alleging that her neighbour abducted her daughter. In the complaint it was mentioned that her daughter was missing for few days and when the victim came back home on October 03, 2020, she informed her mother that she was forcibly abducted on September 9, 2020. It was claimed that the accused kept her in his relative house for three days where she was threatened and sexually assaulted. Subsequently, the accused forcefully obtained signature.
The lawyer on the behalf of the petitioner argued that the act was done on the basis of mutual consent. He contended both the petitioner and victim loved each other and therefore got married in the presence of Mutavali. He even submitted the marriage certificate before the court. Further, he argued that there was no sexual assault on the victim. Hence, he pleaded for bail on these grounds
The learned High Court Government Pleader highly criticized this petition.
Considering the facts and circumstances of the case the court held that the consent of the victim for abduction or marriage or sexual intercourse is completely immaterial as she is a minor and legally not competent for understanding consequences of the act done. Though second marriage is permitted in Mohammedan law, special Law of POCSO, Child Marriage Restraints Act and General laws of the country will prevail over personal laws.
The court further observed that the girl might have given no objection out of fear of the accused and his family. Therefore, it should not be considered as valid consent for granting of bail. The court expressed that releasing the accused merely on the basis of girl’s “no objection” will amount to dilution of Special Acts enacted by the Parliament for the protection of children from sexual offences and also deviation of the provisions of Sections 9 and 10 of Child Marriage Restraint Act apart from the provisions of Section 375 of IPC ultimately affecting the welfare of society at large.
On the basis of above observations, the Court dismissed the bail application.
(Rahul@Nayaz Pasha v. State of Karnataka).