Marriage Cannot Shield Man From POCSO Prosecution for Minor Wife: Kerala HC
The Kerala High Court has ruled that marriage is not a defence in cases filed under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) when the survivor is below 18 years of age. The court dismissed a plea seeking to quash criminal proceedings against a man accused of kidnapping and sexually assaulting a 17-year-old girl whom he claimed to have married.
Justice Jobin Sebastian, hearing the petition, held that even if a marriage was valid under personal law, it would not absolve the accused of criminal liability under the POCSO Act. The Act defines a "child" as any person under 18 years of age, and no exception is provided for a husband.
The case involved allegations that the accused kidnapped the girl in a car, took her to his residence, and committed repeated sexual assault. He was also charged with storing pornographic content involving a child. His parents were accused of abetting the offences. The prosecution said that the girl's parents, though aware of the alleged incidents, refused to take her back or report the matter to authorities.
The accused contended that he had married the complainant when she was 17 years and one month old, following Islamic religious rites. He relied on the exception to the offence of rape under the Indian Penal Code (IPC), which states that sexual intercourse by a man with his own wife is not rape if the wife is not under 15 years of age. Since the girl was above 15, he argued that the rape charge could not be sustained.
However, the High Court noted that the Supreme Court has already clarified that the IPC exception does not apply when the wife is between 15 and 18 years of age. A husband can be prosecuted for rape in such cases, the Supreme Court has held. Moreover, the POCSO Act does not distinguish between a married and an unmarried child.
The court also observed that the accused's claim of marriage was based on statements made to the police by the complainant, her brother, and the Khazi of a mosque. Whether a valid marriage was actually solemnised is a question of fact that must be decided by the trial court, the Bench said. This finding would not, however, affect the maintainability of the POCSO proceedings at this stage.
Even if the marriage was solemnised in accordance with Islamic rites, the girl was only 17 years old at the time. The POCSO Act was enacted to protect children from sexual abuse and exploitation, and its provisions must be interpreted in line with the constitutional mandate to safeguard the best interests of the child, the court said.
The judgment is being seen as an important reiteration that child marriage cannot be used as a shield against prosecution for sexual offences. It also clarifies that personal law cannot override the statutory protection provided to minors under criminal law.
Legal experts point out that this ruling could have wider implications in cases involving minor brides, particularly in communities where child marriage is still practised. It underscores that any sexual act with a person below 18 is an offence, regardless of marital status, and that the law must prevail over custom.
The trial court will now examine the evidence on merits, without being influenced by the argument of marriage. The Kerala High Court's decision ensures that the rights of the child survivor are not diminished by the institution of marriage.
