The Kerala High Court has ruled that a Muslim man who engages in sexual intercourse with a girl under 18 years of age is liable for prosecution for rape under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act, even if the victim is his wife under Muslim personal law, as reported in Verdictum.
Dismissing a petition seeking to quash proceedings against an accused who claimed his 17-year-old wife had consented to the marriage, the Court reaffirmed that marital status provides no defense under the POCSO Act when a party is a minor.
A Bench of Justice Jobin Sebastian observed, “Even assuming for the sake of argument that a marriage was solemnized as per Muslim religious rites and ceremonies, the same will not salvage the petitioner’s criminal liability, particularly since the girl was seventeen years old at the time of the alleged marriage and subsequent sexual acts. Undisputedly, the provisions of the POCSO Act apply if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage under personal law…”
The Court applied the Supreme Court’s landmark ruling in Independent Thought v. Union of India and Another (2017) 10 SCC 800, which raised the age threshold for the marital rape exception from fifteen to eighteen years.
“In view of the law laid down by the Hon’ble Supreme Court in Independent Thought’s Case (cited supra), a person who engages in sexual intercourse with a girl below the age of eighteen years is liable to be prosecuted for the offence of rape under Section 376 IPC, even if the victim is his wife and is between fifteen and eighteen years of age. Therefore, in the case at hand, the accused cannot escape prosecution with the aid of Exception 2 to Section 375 IPC,” the Bench further noted.
The prosecution’s case was that the first accused kidnapped the de facto complainant in a car on October 23, 2021, took her to his residence, and raped her repeatedly over the following four days, with the second and third accused alleged to have facilitated the offence. The accused were charged under Sections 366 and 376(2)(n) of the IPC and Sections 5(l)/6(1) and 15(1) of the POCSO Act.
The petitioner sought quashment on the ground that the de facto complainant was, in fact, his legally wedded wife, having married him on July 23, 2021, under Islamic rites in the presence of both families, a fact he contended was corroborated by police statements of the complainant, her brother, and the officiating Khazi, entitling him to the benefit of Exception 2 to Section 375 IPC.
The complainant’s counsel and the State opposed the petition, contending that the complainant was seventeen years old at the time of the alleged offence, squarely a “child” under Section 2(1)(d) of the POCSO Act, and that the allegations in the First Information Statement, taken at face value, fully disclosed the ingredients of aggravated penetrative sexual assault and rape, making the case unfit for interference at the threshold.
The Court held that its jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is to be exercised sparingly and does not permit a mini-trial or assessment of the probative value of evidence, and that on a plain reading, the allegations in the FIS prima facie disclosed the alleged offences.
On the marriage plea, the Court held that whether a valid marriage existed was a matter for evidence at trial, and, relying on its own earlier judgment in Khaledur Rahman v. State of Kerala and Another (2022 KHC Online 913), held that the POCSO Act is not excluded by marriage or personal law where a party is a minor, since the statute overrides any inconsistent personal or customary law under Section 42A.
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