The bench of Justice Bechu Kurian Thomas of Kerala High Court on Friday ruled that, even if one party to the marriage is minor, irrespective of the validity of marriage, the offences under the POSCO Act will apply.
The bench was dealing with a case where the petitioner is indicted for the offence of kidnapping and rape of a minor.
According to the prosecution, the accused abducted a minor victim and committed repeated penetrative sexyal assults on ger duringthe period before 31.08.2022, due to which the victim became pregnant and thereby, the accused committed the offences alleged.
The petitioner was charged for allegedly committing the offecnes under sections 366, 376(2) (m) and 376(3) of the IPC and under sections 5(j)((ii), 5(i) and section 6 of the POCSO Act.
The question before the bench was :
Whether the petitoner was liable for the offences as mentioned under sections 366, 376(2) (m) and 376(3) of the IPC and under sections 5(j)((ii), 5(i) and section 6 of the POCSO Act?
The bench opied that child marriage compromises the growth of child to her full potential and is a bane to the society. The intent behind the POSCO Act was to prohibit physical relationships with a child, even under the cover of marriage. The bench noted that Personal Laws and customary laws are both laws. Section 42A intends to override such laws also. Therefore it cannot be said 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 ruled that marriage under Muslim persinal laws cannot be an exception to the application of POSCO Act. If one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.
In view of the above, the bench dismissed the bail application.
Case Title: Khaledur Rahman v. State of Kerala
Bench: Justice Bechu Kurian Thomas
Case No.: BAIL APPL. NO. 8216 OF 2022
Counsel for the petitioner: N. Anand
Counsel for the respondent: K.A. Noushad
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