Wednesday, December 6, 2023

Kerala HC Clarifies on Child Marriage under Muslim Law

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According to the Kerala High Court, the Protection of Children from Sexual Offenses (POCSO) Act does not exempt marriages between minors that are governed by Muslim personal law from its reach. Offenses under the POCSO Act will apply if either the bride or the groom are minors, regardless of whether the marriage is lawful or not.

“The POCSO Act is a particular legislation created expressly for the protection of minors from sexual offences,” the Single Bench of Justice Bechu Kurian Thomas said. Every form of sexual exploitation of a child is considered a crime. Marriage is included in the scope of the law.

“The POCSO Act is a distinctive ordinance. The enactment is the outcome of the improvements and advancements made in social thought. Based on jurisprudential ideas about child abuse, this particular legislation was passed. The necessity to safeguard the defenceless, trusting, and innocent kid led to the development of child abuse law. The law requirements make it plainly clear that the legislature intended to shield children from sexual predators who may be watching them from a distance, including those who may be hiding behind marriage “He continued to watch.

The court further mentioned that underage marriages have always been seen as a breach of human rights.

“A child marriage hinders a youngster’s ability to develop to her full potential. It is society’s scourge. The POCSO Act reflects the legislative desire to forbid physical connections with a child, even when they are concealed by marriage. This is also the intention of society, as legislation is, as is sometimes remarked, an expression or reflection of popular sentiment. The court noted that the POCSO Act’s definition of “child” in section 2(d) is “any individual below the age of 18 years” in order to carry out the aforementioned aim.

“Both personal and customary laws are forms of legislation. Additionally, Section 42A seeks to supersede these statutes.

Therefore, it cannot be disputed that, following the implementation of the POCSO Act, having intrusive sexual relations with a child is illegal—even if it takes place while the couple is pretending to be married.

This was said in court when a Muslim guy, 31, who is suspected of kidnapping and raping a little girl, had his bail application denied. He said that in accordance with the personal laws that applied to them, he had legally wed the girl in March 2021.

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