The case of a man who filed a complaint to trace his missing wife, but was arrested for sexually assaulting a minor, has reopened the personal law vs criminal law debate.

Coimbatore wife missing incident turns into a POCSO case What the courts say
news Law Wednesday, March 04, 2020 - 08:26

A few weeks ago, 28-year-old Mohammed Hamir (name changed) approached the RS Puram police station in Coimbatore district, with a complaint that his wife was missing. Three weeks later, Hamir was arrested under various sections of the Protection of Children from Sexual Offences (POCSO) Act. His ‘wife’ turned out to be a 16-year-old girl – a minor he had married in August 2019. Along with Hamir, a 23-year-old man named Vinod Kumar (name changed) who was in a relationship with the minor, too, was arrested and charged under POCSO. Hamir’s parents and the victim’s mother too were arrested, remanded and charged under the Prohibition of Child Marriage Act.

Over the years, there have been discussions on the use of POCSO and Prohibition of Child Marriage Act on cases that deal with personal laws like the Sharia. While the police and some lawyers believe that criminal law overrules other personal religious laws in cases of sexual abuse involving minors, different courts have taken different stands on the issue in the past.

Missing wife to POCSO

The Muslim personal law however presents another challenge; it allows the marriage of minor girls between the ages of 15 and 18. This is clearly at odds with the Prohibition of Child Marriage Act, 2006, which specifies the minimum age for a girl to be legally married in India as 18 and for a boy as 21. So would the Prohibition of Child Marriage Act and POCSO come into play if the child marriage involves a minor Muslim girl?

On February 7, Hamir approached the RS Puram police station with a complaint that his wife, aged 21, was missing. Taking note of his complaint, the police launched a search for the missing person. Twelve days later, on February 29, the police located the missing person in Coimbatore, with Vinod Kumar, and brought them to the police station for inquiry. Preliminary inquiry revealed that Vinod was working as a construction worker in the same locality where Hamir and his wife lived.

“We realised that the girl was not 21. We verified her birth certificate to find that she was just 16. That changed the case. We then altered the case to register POCSO and secured the complainant Hamir and his parents,” says a police officer familiar with the case. The police also booked Hamir’s parents and the girl’s mother.

Police give importance to criminal law

Speaking to TNM about the general procedure adopted by the Tamil Nadu police in cases which involve such conflict, a police officer said that the criminal law will overrule personal laws. “If this was not a POCSO case and instead was a domestic dispute, then it could have been settled in the Jama’ath. But POCSO is a serious criminal offence and hence they cannot claim exemption from it. For a minor, consent doesn’t matter (since as per law, a minor is incapable of giving consent). We will not give leniency if the victim has not completed 18 years of age,” the officer added.

Human rights lawyer Sudha Ramalingam also agreed that Muslims are not exempt from the Prohibition of Child Marriage Act and hence laws like the POCSO will apply in such cases. This is why in general, the police in India book the accused under POCSO even in cases of marrying a minor and establishing sexual relationship with her.

Indian courts take different stances

However, courts – which take the final call in such cases – have taken various stands on the issue.

The Delhi High Court, in 2018, acquitted a man of charges of raping a minor by stating that the victim had attained puberty under Muslim law. He was charged under the POCSO Act for rape and sexual assault of a minor. The victim had, however, given a statement to the police that she had gone with him willingly and had married him. “Though she was a minor, she had attained the age of discretion. It cannot be ignored that the victim is a Muslim and as per the Muslim law she attained the age of puberty at the age of 14 years, and got married after attaining the age of puberty,” the court had ordered.

In another similar case, the Delhi high court has also allowed the marriage between a Muslim minor girl and a Muslim man under the Muslim personal law, although they cited ‘clear conflict’ with POCSO. “In view of the material on record, it appears that the prosecutrix was willing and consenting party and it seems that everything had happened with her sweet will,” the court had ruled, relying on the consent of the minor, who was married.

However, the Madras High Court, in 2018, ruled that the Prohibition of Child Marriage Act will prevail over the Muslim personal law in instances where there is a conflict between the two. “The Prohibition of Child Marriages Act is not against the Muslim Personal Law. The Act enacted for the welfare of the girl children prevails over the personal law. The former helps the girls to get education, empowerment etc.,” the court had ruled. The same court had earlier dismissed a similar plea by stating that the Child Marriage Prohibition Act was secular in nature and it applied to Muslims as well. It slammed the petitioner, stating that he cannot rely on Muslim personal law to claim the right to marry minor girls off at the age of 15, on attaining puberty.

There are inconsistencies in the age of consent between various laws in India. Further, the Indian Penal Code Section 375 excludes the forced sexual intercourse of a girl over the age of 15 as ‘rape’, if the accused is her husband. This, despite the fact that child marriage is banned in the country and sex with a minor is considered statutory rape as per POCSO. In 2017, however, the Supreme Court held that POCSO will overrule the marital rape exception in the IPC in the case of minors.

(With inputs from Priyanka Thirumurthy)

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