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Mon. Dec 5th, 2022
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KOCHI: If one of the parties to a marriage between Muslims is aminor, the offence will invite prosecution under the Pocso Act, irrespective of the validity of the union under religious law, the Kerala HC has ruled.
The verdict is at variance with rulings of the Punjab and Haryana, Delhi and Karnataka HCs that a Muslim marrying a minor cannot be looked at as an offence under the Pocso Act, 2012. “. . . I’m of the considered view that marriage between Muslims under personal law is not excluded from the sweep of the Pocso Act,” Justice Bechu Kurian Thomas said in his order on a bail plea by 31-year-old Khaledur Rahman of West Bengal in a case registered against him by Thiruvalla police. He is accused of abducting a minor from Bengal when she was 14 and sexually assaulting her repeatedly, resulting in pregnancy.
The case was registered on August 31 after a doctor at a family health centre alerted police that a pregnant girl who had come to get an injection was aged 15 years and eight months, going by her Aadhaar. The husband contended that the marriage happened in Bengal on March 14, 2021, in accordance with Islamic rites.
Police told the court that the girl’s parents were unaware of the marriage and there was no evidence of a marriage under Islamic law.
Turning down the bail plea on November 18, the HC said Muslims who had attained puberty were allowed to marry under traditional law (Article 251, Principles of Mahomedan Law by Dinshaw F Mulla), but it was questionable whether personal law would prevail over a special legislation like Pocso. Under the Pocso Act, sexual exploitation of every nature against a child is treated as an offence, and marriage is not excluded from the sweep of the statute, it noted.

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