The Karnataka High Court has observed that the POCSO (Protection of Children from Sexual Offences) Act is a Special Act that overrides personal law. Justice Rajendra Badamikar made the observation on two different occasions while hearing bail pleas in cases of alleged sexual assault on minors. He also rejected the argument that a minor Muslim girl’s wedding on attaining puberty does not violate the provisions of the Prohibition of Child Marriage Act.
In the first case, the petitioner was booked after his wife went to the Primary Health Centre (PHC) in Ramamurthy Nagar for a medical check up on June 16, 2022. There, it was found that she was 17 years old and pregnant. Subsequently, the Sub Inspector (SI) of RK Puram Police Station filed a complaint against the man based on the information provided by the Medical Officer at the PHC. The complaint stated that he committed a punishable offence under sections 9 and 10 of Child Marriage Restraint Act (punishment for adult male for marrying a child and punishment for solemnising a child marriage) and sections 4 and 6 of POCSO (aggravated sexual assault and punishment for aggravated sexual assault). The petitioner was then arrested and remanded to judicial custody.
Arguments in favour of the petitioner said that according to the Muslim Personal Law, puberty (generally, 15 years of age) was considered as the normal age for marriage in women. Since the girl had attained puberty before the wedding, their marriage was not an offence according to the Child Marriage Restraint Act. The judge stated that such arguments are not permissible because POCSO overrides personal law and the age for consenting to sexual activities is 18.
However, the judgment also stated, “The victim is about 17 years of age and is capable of understanding things.” It further said that even though she alleges that the marriage was solemnised without her consent, there is no evidence for her objection to it. The judgment also mentioned that she was a consenting party though she was under the influence of her parents.
Citing that there is no impediment on granting bail to the petitioner, the judge said, “There is no serious dispute regarding the marriage as the petitioner himself has produced the relevant documents.” Granting him bail, the judge also stated that since the girl is pregnant, she needs the support of her husband.
In a different case on October 27, the High Court observed, “POCSO and IPC [Indian Penal Code] are substantiate Acts and they prevail over personal law. Under the guise of personal law, the petitioner cannot seek regular bail.” The observation was made by Justice Rajendra Badamikar while hearing the bail petition of a 19-year-old Muslim man who was accused of sexual assault by a 16-year-old girl.
The girl was taken by the man to a lodge in Srirangapatna where they stayed overnight. In the meantime, the girl’s mother had lodged a missing persons complaint. After the man dropped her off, the girl narrated the incidents to her mother. Subsequently however, the investigating officer recorded the girl’s statements where she said that she went with the man voluntarily and had sexual relations with him. A complaint was filed against the man under sections 6 and 12 of the POCSO Act (punishment for aggravated sexual assault and punishment for sexual harassment). However, she later changed her statement in the presence of the Magistrate and said that the man had sexually assaulted her. He was arrested and remanded to judicial custody.
During the hearing, the counsel for the accused stated that there is a discrepancy in the girl’s statements. The counsel also asked the Bench to take note that the girl was above the age of puberty since both the man and the girl were Muslims. However, the judgment stated, “Even if the consent is said to be there, since the victim is a minor her consent becomes irrelevant.” Rejecting the bail plea, the judgment added that even if the investigation was complete and the chargesheet had been filed, “mere submission of the chargesheet does not give any right to the present petitioner to claim bail as a matter of right.”