The Kerala High Court re-iterated the purpose and intent of enacting the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”) which is to prevent the child from any kind of sexual abuse and exploitation. It further opined that such a statute like POCSO will override any kind of personal or customary law as POCSO is a special statute. 

Brief Facts

The petitioner is alleged to have committed the offence of kidnapping and rape of a minor victim. 

The case of the Petitioner is that the Petitioner has married the victim as per the personal laws and therefore regular bail should be granted to him. 

The case of the Prosecution is that the Accused after abducting the minor victim committed repetitive penetrative sexual assault. Due to this, the victim got pregnant which came to be known when the victim had gone for an injection at the Family Health Centre. It came to light that the victim is only 16 years old from her Aadhaar Card and the police, therefore was immediately informed. 

Contentions of the Petitioner

It was contended by the Petitioner that the victim and the Petitioner got married as per Mahomedan law in 2021. Since the marriage of girls below 18 years is permissible under Mahomedan law, the Petitioner cannot be prosecuted under the POCSO. It was argued that the victim needs the Petitioner for support during her pregnancy and that is why the Petitioner should be released on bail. 

Contentions of the Prosecution

It was argued that at present the age of the victim is not even 16 years, it is less than 16 years. The alleged marriage of the parties is not known to the family of the victim. It was contended that even if marriage is assumed, the provisions of POCSO cannot be ignored and that POCSO will prevail over the Mahomedan Law. 

Observations of the Court

The Court noted that the age of the victim as on the date of registration of the FIR is only 15 years and 8 months. At the time of the alleged marriage as per the Islamic customs and rites, the age of the victim was only 14 years and 4 months. 

Even though Muslim Personal law statutorily declares the supremacy of Muslim law, the enactment of the Prohibition of Child Marriage Act, 2006 cannot be ignored. Since the marriage of the parties was unknown to the family of the victim and the age of the victim was only 14 years, the existence of valid marriage even as per Muslim personal law is questionable.

The Bench observed that the enactment of POCSO was for a special purpose and that is to protect children from sexual offences. This statute does not exclude marriage from its purview as sexual exploitation of every nature is prohibited under this Act.

Referring to the maxim ‘Generalia Specialibis Non-Derogant’ which translates into ‘special law will prevail over the general law’, the High Court noted that to resolve conflicts between two different Acts, this maxim should be considered. 

It was opined that unless any specific exclusion of the customary or personal law is stated, the statute prevails. The Kerala High Court noted that the marriage between the parties cannot be said to be a legally valid marriage. Further, it propounded that the intention of the legislature while formulating POCSO was to protect children from predators garbed under different labels, such as that of marriage. Even under the guise of marriage, any kind of penetrative sexual assault with a child is an offence. 

The decision of the Court

Therefore, ruling that the personal law is not excluded from the application of POCSO, the Kerala High Court denied bail to the Petitioner and accordingly, dismissed the application. 

Case Title: Khaledur Rahman v. State of Kerala & Anr. 

Coram: Hon’ble Mr. Justice Bechu Kurian Thomas 

Case No.: BAIL APPLN. No. 8216 of 2022 

Advocates for Petitioner: Advs. Sri. N. Anand, Sri. Bijith S. Khan, Sri Rajesh O.N. 

Advocate for Respondent: Public Prosecutor, K.A. Noushad 

Read Judgment @LatestLaws.com

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Priyanshi Aggarwal