oppn parties Sex With Minor Wife Is A Crime Under Pocso Act: Kerala HC

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Sex With Minor Wife Is A Crime Under Pocso Act: Kerala HC

By Sunil Garodia
First publised on 2022-11-21 06:45:29

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

In a order that correctly interprets the provisions of the Pocso Act, a single-judge bench of the Kerala High Court has ruled that marriage between Muslims under personal law was not excluded from the provisions of the Pocso Act and anyone having sex with his wife who is below 18 years of age is liable to be prosecuted for penetrative sexual assault on a child as per Section 3 of the said act.

There is no exemption granted to marriages entered into with a child under any personal laws in Pocso Act. A child (and the term is gender-neutral in Pocso Act) is defined as someone below the age of 18 (although many people think that it should be lowered to 16) and if any religious or personal law allows people to marry children below that age, the marriage must not be consummated until the wife is 18 years and above to escape punishment under the said Act.

As it is, despite laws which seek to prevent child marriage, the Muslim personal law allows girls and boys to marry after they attain puberty which is assumed at the age of 15 and above. But as per Prohibition of Child Marriage Act, girls cannot marry before they attain the age of 18. Courts have sometimes held under-age marriages under Muslim personal law to be valid since in the absence of an enforceable Uniform Civil Code, in the opinion of some courts personal laws hold primacy over special laws. The Supreme Court has agreed to examine this anomaly after the National Commission for the Protection of Child Rights (NCPCR) filed a petition to challenge an order of the Punjab & Haryana HC which allowed a 17-year-old Muslim girl to marry as per her choice.But since Pocso is a criminal Act, its provisions will obviously override personal laws.

Further, in the preamble to the Pocso Act, the legislature had spelled out its intentions for enacting the provisions which included that "it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child". It is illegal and wrong to marry a child below 18 but even if it is permitted under religious or personal laws or local tradition, it is blatantly illegal to consummate the marriage to protect the physical and mental well being of the child. Hence, the Kerala HC has rightly ruled that it is definitely illegal to have sexual relations with a child below 18 years of age under the Pocso Act even if one is allowed to have her as a wife as per personal laws.

 

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