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‘Sex with minors is illegal’; Kerala High Court refuses to exclude Muslim personal law from POCSO Act

According to the Kerala High Court, a marriage between Muslims that is governed by personal law is not exempt from the Protection of Children from Sexual Offenses (POCSO) Act. If one of the spouses is a juvenile, the POCSO Act’s offences will apply, according to Justice Bechu Kurain Thomas. In such circumstances, the legitimacy of the marriage would not be taken into account. Notably, the rulings of the Punjab and Haryana High Courts, Delhi High Court, and Gujarat High Court differed from those of the Kerala High Court. The three state High Courts had prioritised personal law over POCSO. On October 30, the Karnataka High Court decided that POCSO would supersede personal law.

A court in the southern Indian city of Chennai (Madrasa) has heard a bail plea by a Muslim man accused of kidnapping and raping a minor. He claimed to have gotten married to the minor as per Muslim personal law in March 2021. The accused allegedly abducted the minor from West Bengal and committed repeated penetrative sexual assaults during the period before 31.08.2022.

Justice Thomas noted that the investigation officer alleged the accused allegedly enticed the victim without the knowledge of her parents. At that time, the victim was only just over 14 years old and her marriage was also put under scanner by the court. Justice Thomas said, though, as per The Muslim Personal Law (Shariat) Application Act, 1937, all questions related to marriage would be divided as per the Muslim personal law after the Prohibition of Child Marriage Act, 2006 came into force.

The POCSO Act is a special statute enacted specifically for the protection of children from sexual offences. Sexual exploitation of every nature against a child is treated as an offence under the act. Marriage is not excluded from the sweep of the statute, the court ruled. Section 42A of the act categorically says that if there are inconsistencies with provisions of any other law, it will override other laws.

Kerala High Court’s judgement says POCSO oversides Personal Law. In the past, several High Courts have ruled that marriage of Muslim girls above 15 years is legal. Punjab and Haryana Court reaffirmed that a Muslim girl who reaches the age of 15 can marry whoever she wants. Such a marriage would not violate the Prohibition of Child Marriage (PCM) Act.

A Muslim girl might marry a man of her choosing at the age of 15 provided she had reached puberty, the Delhi High Court ruled in June 2012. The High Court also gave assurances that Islamic personal laws would still apply to Muslim girls. The National Commission for the Protection of Child Rights petitioned the Supreme Court, who will now review the case.


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