The Kerala High Court has refused to quash criminal proceedings against a man accused of repeatedly raping a 17-year-old girl, holding that even if their marriage was solemnised under Muslim religious rites, it would not protect him from criminal liability under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Jobin Sebastian dismissed a petition filed by the first accused in the case registered at Mannarkkad Police Station and now pending before the Fast Track Special Court in Pattambi. The court said the allegations raised issues that could be decided only after a full trial, though they prima facie disclosed the offences alleged.
Citing the law laid down by the Supreme Court in Independent Thought’s Case, the High Court said a person who has sexual intercourse with a girl below 18 years of age is liable to be prosecuted for rape under Section 376 of the IPC, even if the victim is his wife and is between 15 and 18 years old.
“Therefore, in the case at hand, the accused cannot escape prosecution with the aid of Exception 2 to Section 375 IPC,” the court said in its August 19 order.
The accused had argued that the girl was his legally wedded wife and that they had married when she was 17 years and one month old, according to Islamic religious rites and ceremonies.
Rejecting this argument, the court said the POCSO Act applies when one of the parties to a marriage is a minor, irrespective of whether the marriage is valid under personal law. It held that the accused could not escape prosecution by relying on the marital relationship.
“Even assuming for the sake of argument that a marriage was solemnised as per Muslim religious rites and ceremonies, the same will not salvage the petitioner’s criminal liability, particularly since the girl was 17 years old at the time of the alleged marriage and subsequent sexual acts. Undisputedly, the provisions of the POCSO Act apply if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage under personal law,” the court said.
The accused had sought quashing of the proceedings under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. According to the prosecution, on October 23, 2021, he allegedly took the girl in a car to his residence and repeatedly raped her between October 23 and 26. The second and third accused allegedly facilitated the offence. The prosecution also alleged that the girl’s parents, despite being aware of the offence allegedly committed by the first accused, failed to take her back or report the matter to the authorities.
Opposing the plea, the counsel for the first respondent argued that the girl was below 18 years of age and therefore a child under the POCSO Act. Sexual intercourse with her would constitute an offence under the Act irrespective of the alleged marriage, the counsel submitted.
Referring to the allegations in the First Information Statement, the court said the accused allegedly arrived in a car, told the girl that he would buy clothes for her, and took her to his house at Thottara.
It was further alleged that she was made to stay there and was placed in the accused’s bedroom after she expressed a wish to sleep with his mother. The door was allegedly locked from outside. The girl allegedly told police that the accused forcibly had sexual intercourse with her on the night of October 23 and repeated the act over the next four days.
The court said the truthfulness of these allegations could be decided only after a full-fledged trial. It also examined the accused’s claim that the girl was his legally wedded wife and noted that it was based mainly on statements given to police by the girl, her brother and the Khazi of the mosque where the marriage was allegedly conducted. “Nevertheless, whether a valid marriage actually took place as claimed by the petitioner is a matter that can be determined only after trial, particularly since there is no documentary evidence showing the solemnisation of such a marriage,” the court said.
Relying on an earlier decision, the High Court said the POCSO Act is a special law enacted specifically for the protection of children from sexual offences.
It referred to Section 2(1)(d) of the Act, under which a child means any person below 18 years of age, and to Section 42A, which gives the law overriding effect in case of inconsistency with other laws. “It is manifestly clear that sexual intercourse with a girl below eighteen years of age attracts the offences under the POCSO Act, and in such a situation, whether the child is the wife of the accused or not is of little consequence,” the court said.
In sum, the High Court declined to interfere with the prosecution at this stage and said the accused’s claim of marriage could not defeat the case under the POCSO Act and rape law. It also clarified that its observations were made only for deciding the petition and should not influence the trial court while deciding the case on its merits.
– Ends
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