The Kerala High Court has ruled that sexual activity with a juvenile, even when done in the name of marriage, is illegal and that Muslim marriages under personal law are not exempt from the POCSO Act.

A 31-year-old man was accused under the Act for allegedly kidnapping and impregnating a 15-year-old girl who he claimed to have married, and the judge denied him bail.

In his judgement rejecting the bail, Justice Bechu Kurian Thomas stated that child marriage is a social ill and that the POCSO Act forbids having physical contact with a minor, even when it is disguised as marriage.

"In my opinion that the POCSO Act does not specifically preclude marriages between Muslims under personal law. Offenses under the POCSO Act will apply if one of the participants to the marriage is a minor, regardless of whether the marriage is genuine or not "According to a November 18 order from Justice Thomas.

Khaledur Rahman, a West Bengal native, claimed that the girl was his wife whom he married on March 14, 2021 in accordance with Mohammedan law. The high court was hearing his bail request at the time. He stated that because Mohammedan law allowed marriage of females younger than 18, he cannot be charged under the Protection of Children from Sexual Offenses (POCSO) Act.

The incident was discovered when the police were notified by the Family Health Centre in Kaviyoor in the Pathanamthitta district that the woman had visited for an injection for her pregnancy. On August 31, 2022, the Medical Officer notified the police after discovering the victim was 16 according to her Aadhaar Card.

The POCSO Act was passed as a result of the developments and progress made in society thought, the court stated.

"The child's ability to develop to her full potential is compromised by a child marriage. It is society's scourge. The POCSO Act reflects the legislative desire to forbid physical connections with a child, even when they are concealed by marriage. This is also the intention of society, as a legislation is, as is sometimes remarked, an expression or reflection of popular will "The judge stated.

It was noted that when a statute's provisions conflict with or are inimical to customary law or personal law, the statute will take precedence and the personal law or the customary law will be declared null and void in the absence of any express exceptions.

The prosecution claimed that she was brought from West Bengal to Kerala against her parents' wishes, the court noted.

Author: Swetha Gunasekaran Advocate