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KERALA HC HELD THAT HUSBAND IS LIABLE FOR SEX WITH MINOR MUSLIM GIRL, THUS OVERRIDING MUSLIM PERSONAL LAW
In a recent order issued by the Kerala High Court in Khaledur Rahman v State of Kerala, the question before the court was whether a marriage between a Muslim male and a minor Muslim female, solemnized under the Muslim personal law (Shariat), overrides the provisions of a special statute, the Protection of Children from Sexual Offences (POCSO) Act. The petitioner, who was arrested by the Thiruvalla police, sought reprieve from detention under the alleged commission of offences of kidnapping and rape of a minor. The accused claimed that the couple married under Mahomedan law on March 14, 2021. Since Mahomedan law considers the marriage of minor girls as legally valid, he could not be prosecuted for the offences under the POCSO Act. Whereas the prosecutor for the state alleged that the accused had abducted the minor from West Bengal and committed repeated penetrative sexual assaults on her, due to which the victim became pregnant. Hence the accused committed the offences alleged.
According to Section 12 of the Muslim Personal Law, the marriage of a minor child is considered to be null and void in the following circumstances- "if a minor is (a) taken or enticed out of the keeping of the lawful guardian, or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes." The petitioner, Khaledur Rahman, was 31 years old, whereas the victim was only 15 years and eight months at the FIR registration time. Here, the validity of the marriage was also debatable since the investigating officer alleged that the victim was enticed by the accused without the knowledge of her parents and the victim's age was also just above 14 years at the time of the alleged marriage. Moreover, irrespective of the validity of the marriage, the female was a minor, implying that the POCSO provision will still hold good. (Refer to section 42A of the POCSO, i.e., in the event of any inconsistency with provisions of any other law, the POCSO Act would prevail.)
The honourable judge in the matter, Bechu Kurian Thomas, opined that "The POCSO Act is a special statute enacted specifically for the protection of children from sexual offences. Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statute." The court finally dismissed the plea and denied bail to the accused after considering all the aforementioned circumstances.
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