POSCO Does Not Exclude Marriage With Minor Under Muslim Law: 10 Things To Know

On Monday, while reviewing the bail petition of a Muslim man accused of kidnapping and raping a minor girl from his community, The Kerala High Court announced that his crime is punishable by offence under the Protection of Children from Sexual Offences (Pocso) Act because any kind of physical contact, regardless of what any religious law says, is a crime.

The Kerala High Court held that marriage with a minor under Muslim law would always be held liable under an offence as stated by Posco and that the act will not exclude any religious law.

Suggested Reading: Boycotting Those Who Give Triple Talaq Will Curb Practice: Muslim Law Board

Marriage Of Minors Under Muslim Law: 10 things to know

1. The High Court in Ernakulam was announcing a judgement while reviewing a bail petition submitted by a 31-year-old Muslim man, who had kidnapped, raped and then married a minor girl.

2. The man had contended in the court that he had lawfully married the girl in March last year with respect to the personal laws applicable to him and his community and that he should be exempted from the punishment. The man had also cited past judgements given by the Haryana and Karnataka courts in order to support his claims and justify his crime, however, the court refused to take that account saying that there is no excuse for such an act.

3. The Court, however, held that the Protection of Children from Sexual Offences (Pocso) Act does not exclude any personal religious law and would not hold the Muslim Law as an exception when it comes to minor women. The judge stated that the man who has physical contact with his minor spouse would always be liable under the Act, irrespective of personal law.

4. Justice Bechu Kurian who formed the single bench of judges observed that the Act protecting minors is specifically designed to safeguard their lives and keep them safe from sexual offences and harassment. He further reinstated that the Act clearly defines that any nature of sexual offence or exploration against a minor will always be treated as an offence.

5. Justice Kurian observed the case and maintained it as a punishable offence, stating that marriage does not give any offender a right to justify his actions because marriage with a minor cannot be excluded by POSCO.

6. "The Act is an enactment that safeguards children from the exploitation of every nature. The progressive nature of society and the advancement of the human race has resulted in the Act being accepted by all sections of society. Child abuse of any kind is and will never be tolerated and any kind of label, even marriage, will not justify the offences carried out against minors," he stated.

7. Reiterating that child marriages have always been considered a massive violation of human rights, the Court observed that any kind of religious law can not intervene when it comes to the justice system of the country.

8. Child marriage contributes to the devastation and destruction of the growth of the minor and if carried out, will only take us back as a society in this day and age, observed the Justice.

9. "The Posco Act has described the word 'child' in section 2(D) as any person who is below eighteen years of age, and therefore, those people falling in that category, if married by law too, should be considered as the ones who are exploited and their culprit should be held as criminals.

10. The Court lastly stated that while both customary and personal laws are considered extensive and exclusive laws, their shelter for offences like these should be deemed criminal. "Section 42A overrides such laws also. Therefore, sexual relations with a child even on the law permitting marriage will strictly be treated as a crime."