Personal Law can’t override POCSO Act, IPC: High Court


 Though a second marriage is permissible under Mohammedan law, personal law cannot override special laws like the Protection of Children from Sexual Offences (Pocso) Act, Child Marriage Restraint Act and the General Penal Code of this country, the Karnataka high court observed on Monday, while rejecting bail to Rahul alias Nayaz Pasha, of Tiptur town in Tumakuru district.

“Merely because the parties are Mohammedans, it does not mean the petitioner-accused has the right to marry a minor girl by enticing and abducting her,” the court pointed out. A case was filed against the accused under various sections of IPC, Pocso Act and the Child Marriage Restraint Act.

Judge says minor’s consent for marriage is immaterial

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Pasha was accused of abducting and raping a 15-year-old girl, his neighbour, in October last year. His wife is also an accused. Pasha claimed he married the girl and the second marriage was permissible under Mohammedan law.

Rejecting it, Justice K Natarajan noted that the girl is 15 years and her consent is immaterial and even if she has voluntarily gone with the accused, it amounted to abduction or kidnapping under Section 363 of IPC.

“The accused not only abducted the minor girl, but also married her which attracts Sections 9 and 10 of the Child Marriage Restraint Act. He sexually assaulted her which attracts Sections 4 and 6 of the Pocso Act,” the judge observed.

The girl’s mother filed a complaint on October 5, 2020, alleging that her daughter had been abducted by Pasha. According to her, at 11pm on September 27, 2020, her daughter was sitting with a mobile phone, and later went missing from the house.

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At 2pm on October 3, 2020, the girl returned home, and was weeping. The girl said that on September 27, the accused abducted her by gagging her with a napkin and took her to his relative’s house. He kept her there for three days and didn’t allow her to talk to anybody.

Later, that night, he took her to a secluded place and secured her signature on a marriage certificate. Around noon on October 1, 2020, Pasha's wife took the girl and dropped her at a house where her husband allegedly sexually assaulted her. The girl later escaped from captivity and reached home.

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