The Karnataka high court considers marriage of minor Muslim girls invalid due to POCSO. The court observed that such a marriage is invalid as it violates provisions of the Protection of Children from Sexual Offences (POCSO) Act.
This observation comes a few after the Punjab and Haryana high court said otherwise. The court in its September 30 order had exempted Muslim girls. It had stated that Muslim girl of 15 years or above can marry a person of her choice on her own willingness and consent. That such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.
Thus, Punjab and Haryana HC does not consider marriage of minor Muslim girls invalid. However, National Commission for the Protection of Child Rights (NCPCR) has challenged the order in the Supreme Court.
Age of sexual activity is 18
But, in this current case, Justice Rajendra Badamikar of Karnataka HC has observed otherwise. While hearing the bail plea the court observed that marriage of minor Muslim girls is invalid. POCSO over-rides any personal laws, irrespective of religion. The court held the view that such a marriage contravenes The Prohibition of Child Marriage Act, 2006.
The bench further observed that the POCSO Act, being a Special Act, overrides the personal law. As per the POCSO Act, to participate in sexual activities, the woman should have achieved 18 years of age, the report said.
The case dates back to June 16. When, doctors conducted a check-up at the local health care facility in Bengaluru of a 17-year-old girl. They found her to be pregnant. The health official informed the police as the girl was a minor.
Subsequently, Police lodged an FIR under section 9 (punishment for male adult marrying a child). And also under section10 (child marriage) of The Prohibition of Child Marriage Act, 2006. Later, authorities added sections 4 and 6 of the POCSO Act (sexual assault) against the petitioner. Police has accused that the man of marrying and impregnating a minor girl.
POCSO over rides Muslim personal law
In the bail plea, petitioner’s counsel used the argument of Muslim personal law. He argued before the high court that under Mohammedan Law, puberty is the consideration for marriage. And that, normal puberty age is treated as 15 years. Thus, since this girl had attained puberty, there was no commission of an offence under the said sections.
But, the bench rejected this argument by stressing that POCSO Act overrides personal law.
The court further observed that there was no evidence to show that she raised any objections to her marriage and she was a consenting party.
“Admittedly, the petitioner is the husband of the victim. And looking to these facts and circumstances, there is no serious dispute regarding the marriage. Moreover, the petitioner himself has produced the relevant documents before the trial,” the bench noted. Bench made these observations while granting bail to the accused. The court granted the bail on his executing a personal bond for a sum of Rs 1 lakh.