According to a ruling by the Kerala High Court, a marriage between Muslims under personal law is not exempt from the scope of the Protection of Children from Sexual Offenses (POCSO) Act.
In addition, the court decided that POCSO Act offences would apply regardless of whether the marriage was valid or not if one of the parties was a juvenile.
The Single Bench of Justice Bechu Kurian Thomas further observed, “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 POCSO Act is a special enactment. The 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 child abuse jurisprudence evolved out of the need to protect the vulnerable, the gullible and the innocent child. The legislative intent to protect the child from sexual predators hovering over them under different labels, including that of marriage, is explicitly evident from the statutory provisions,” he further observed.
The court further mentioned that underage marriages have historically been seen as a breach of human rights.
“A child marriage compromises the growth of the child to her full potential. It is the bane of society. The legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage. This is the intent of society, too, for a statute is, as is often said, the expression or reflection of the will of the people. In the accomplishment of the said intent, the POCSO Act has defined the word ‘child’ in section 2(d) as ‘any person below the age of 18 years,” the court observed.
“Personal laws and customary laws are both laws. Section 42A intends to override such laws also. Therefore it cannot be gainsaid that after the coming into force of the POCSO Act, penetrative sexual intercourse with a child, even if it is under the guise of marriage, is an offence,” the court added.
A Muslim man, 31, who is accused of kidnapping and raping a minor girl, had filed for bail. The court denied his plea. According to the personal laws that applied to them, he claimed that he had legally wed the girl in March 2021.