Recently, the Calcutta High Court denied bail to a 31-year-old man charged under the POCSO Act for allegedly abducting and impregnating a 15-year-old minor girl whom he claims to be his wife.

“Muslim marriages under personal law are not excluded from the POCSO Act and sexual intercourse with a child, even if it is under the guise of marriage, is an offence,” said the Kerala High Court.

The Calcutta High Court was hearing a bail plea filed by a person, Khaledur Rahman, who claimed that he married the girl on March 14, 2021 as per Mohammedan law. He claimed that he cannot be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act as Mohammedan law permits marriage of girls below 18 years. The matter came to light after a Family Health Centre at Kaviyoor in Pathanamthitta district informed the police when the victim had gone there for a test related to her pregnancy. On noticing the victim’s age as 16 years from her Aadhaar Card, the Medical Officer informed the police on August 31, 2022.

“Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statue. A child marriage compromises the growth of the child to her full potential. It is the bane of society. The legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage. This is the intent of society, too, for a statute is, as is often said, the expression or reflection of the will of the people,” the court said.

The court observed that when the provisions of a statute are repugnant to, or contrary to the customary law or personal law, in the absence of any specific exclusion of the said customary or personal law from the statutory provisions, the statute will prevail, and the personal law or the customary law shall stand abrogated. The court noted that as per the prosecution, she was brought to Kerala from West Bengal, allegedly behind the back of her parents.

Justice Bechu Kurian Thomas, in his order dismissed the bail of the accused.