Interestingly, the High Court had in another case that the POCSO Act overrides Muslim personal law with respect to the age of consent for sex and hence, sex after marriage with minor Muslim wife would be punishable.
The Karnataka High Court on October 10 quashed a rape case and case under the Protection of Children from Sexual Offences Act (POCSO Act) against a man who was booked for having sex with his minor Muslim wife and impregnating her [Mohammad Waseem Ahamad & Ors v State & Anr].
Single-judge Justice K Natarajan took into consideration the fact that continuing criminal proceedings would be an abuse of process of law and no purpose would be served if the victim turns hostile during trial as both parties wanted to settle dispute.
Therefore, conducting investigation would be of no benefit, the Court said.
“Considering the facts and circumstances of the case, continuing to allow criminal proceedings is abuse of process of law and no purpose would be served if the victim turns hostile during trial and the question of conducting investigation against the petitioners by the investigation officer is a futile exercise. Therefore, I.A.No.1/2022 filed by the both parties has to be allowed and accordingly, it is allowed. Both the parties are permitted to settle the dispute and compound the offence,” the Court held.
Interestingly, another bench of the High Court had, on October 12, held in another case that the POCSO Act overrides Muslim personal law with respect to the age of consent for sex and hence, sex after marriage with minor Muslim wife would not be exempt from POCSO.
The Court in the present case was hearing a plea by the accused to quash the criminal proceedings against a man who was booked for offences under the Indian Penal Code (IPC), the POCSO Act and the Child Marriage Act after he impregnated his minor Muslim wife.
As per prosecution case, the Police registered a suo moto complaint on the basis of information furnished by a medical officer regarding the petitioner and his parents committing offences punishable under Sections 376, 376 (2) (N) of IPC, Sections 9 and 11 of Child Marriage Restraint Act and Sections 5(L), 6 and 17 of the POCSO Act.
During the pendency of trial before the sessions judge, husband-wife moved an intervention application seeking to compound the offence.
The counsel for both parties contented that Muslim law allows a minor to get married after attaining puberty and, therefore, no offence was made out.
They further argued that both of them are willing to settle the dispute.
The Court noted the fact that it was an arranged marriage where parents of both parties were involved.
The Court further relied on judgments passed by the Delhi High Court in Fija v. State and the Punjab and Haryana High Court in Mohd. Samim v State of Haryana wherein the High Courts had quashed criminal proceeding taking into consideration POCSO Act, IPC and Child Marriage Act.
In light of this, bench quashed the criminal proceeding stating,
“The Coordinate Bench of this Court in Criminal Petition No.4172/2022 has taken a similar view and quashed the criminal proceedings. The joint affidavit of both the parties shows that the parties have settled the issue in dispute.”
Advocate Muzaffar Ahmed represented the petitioner, advocate BJ Rohith appeared for the State and advocate S Yogendra for prosecutrix.
The legal issue regarding whether sex with a minor Muslim wife would be hit by POCSO Act has seen conflicting judgments by different High Courts in the recent past.
The reason for the dispute is the fact that the Muslim personal law allows minor Muslim girls to marry on attaining 15 years of age which is presumed to be the age by which the girl hits puberty.
Recently, the Punjab and Haryana High Court had held that a Muslim girl on attaining 15 years of age can marry a person of her choice and that such a marriage would not be void under the Prohibition of Child Marriage (PCM) Act.
Similarly, the Delhi High Court also held that according to Muslim law, a minor girl who has attained puberty can marry without the consent of her parents and has the right to reside with her husband. In such cases, when physical intercourse happens only after the wedlock, offences under the POCSO Act will not be attracted, it had held.
A similar judgment was delivered by the Punjab High Court which has been challenged before the Supreme Court by the National Commission for the Protection of Child Rights (NCPCR).
In its appeal, the NCPCR has stated that the the ruling was in contravention of the PCM Act and the POCSO Act as it effectively allowed child marriage and sexual intercourse with children.
However, the Karnataka High Court recently held that the POCSO Act overrides Muslim personal law with respect to the age of consent for sex and hence, sex after marriage with minor Muslim girl would not be exempted from POCSO.
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