In two separate cases, the Karnataka High Court (HC) has held that the POCSO Act and IPC override Muslim personal law regarding age of marriage.
In the first case, the HC rejected the contention that "under Mohammedan Law, the puberty is the consideration for marriage and normal puberty age is treated as 15 years and hence, no commission of offence under Section 9 and 10 of the Child Marriage Restrain Act," was committed.
Justice Rajendra Badamikar in his recent judgement said that, “POCSO Act is a Special Act and it overrides personal law and under POCSO Act, the age for involving in sexual activities is 18 years."
The court was hearing a petition for bail by a 27-year old Muslim man whose wife was 17 years of age and had become pregnant.
When she visited a hospital for check-up, the medical officer informed the police of her age and a case under Child Marriage Restrain Act and Protection of Children from Sexual Offence Act (POCSO) was filed against the husband.
However, the court granted bail to the husband.
It said, "Admittedly, the petitioner is the husband of the victim and looking to these facts and circumstances, there is no serious dispute regarding the marriage as the petitioner himself has produced the relevant documents before the Trial Court regarding the marriage. Considering the relationship of marriage, in my considered opinion, there is no impediment for admitting the petitioner on bail."
In the second judgement by the same judge, a 19-year old's bail petition was rejected by the court.
He was charged under the POCSO Act as well as the Indian Penal Code (IPC).
He had allegedly induced a 16-year-old girl on April 6, 2022 to go with him to Mysuru where he raped the minor girl twice in a hotel room.
A charge sheet has already been filed in the trial court in Chikkamagaluru.
In the bail petition before the HC, the advocate for the accused argued that "the age of puberty is required to be taken note of as parties are Mohammedans."
The HC however, said that "But it is to be noted here that the POCSO Act and IPC are substantiate acts and they prevail over personal law and under the guise of personal law the petitioner cannot seek regular bail."
Considering that "there is prima-facie material evidence against the petitioner and the medical evidence further discloses there is a sexual relationship," the court said bail could not be granted to him.
Even though the charge sheet was filed, "mere submission of the charge sheet does not give any right to the present petitioner to claim bail as a matter of right," it said, rejecting the petition.
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