Sex With Minor Wife Is A Crime Under Pocso Act: Kerala HC
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
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By Sunil Garodia
First publised on 2022-11-21 06:45:29
About the Author
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
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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.
