The Punjab & Haryana High court while hearing anticipatory plea of a Muslim man, booked under Sections 363 and 366-A of the IPC for allegedly kidnapping a 15-year-old girl whom he had married in 2023 held that POCSO Act will prevail over Muslim law.

Facts of the case

A Muslim man married a 15-year-old girl under Muslim law, he was later accused of kidnapping his wife from the lawful guardianship of her parents. The man filed for anticipatory bail, and the girl was sent to a children’s home as had stated before the magistrate that she didn’t want to go with her parents.

Contention of the Petitioner

The Petitioner while relying on Javed V. State of Haryana & ors., contented that a minor Muslim girl is competent to enter into a contract of marriage with the person of her choice as per Muslim personal law. The judgment relied upon also upholds this view; it states that a Muslim girl aged 15 years can enter a legal and valid marriage as per personal law.

Court’s observation

The Court took note of the statement made by the Supreme Court in NCPCR v. Javed & Ors. that the ruling in Javed (supra), which concluded that a Muslim girl who is fifteen years old can marry legally and validly under personal law, should not be used as a precedent in any other case.

According to sub-section (d) of Section 2 of the Act of 2012, a child is any individual who is younger than eighteen. In addition, the Court noted that Section 42-A of the Act of 2012 stipulates that, to the extent of inconsistency, the provisions of this Act shall supersede the provisions of any such law.

HC observed that,  in order to protect children from sexual assault, harassment, and pornography, among other offenses, the Protection of Children from the Sexual Offence Act, 2012 was passed. It is a self-contained comprehensive law that takes into account the child’s interests and well-being throughout the entire legal process.

It stated, “Protection of Children from Sexual Offense Act (POSCO Act) has been enacted, which is a self-contained comprehensive legislation inter alia to provide for the protection of children from offenses of sexual assault, sexual harassment, and pornography with due regard for safeguarding the interest and well-being of the child at every stage of the judicial process.”

Court’s Decision

The HC denied the anticipatory bail application of the petitioner for the alleged kidnapping of his wife from the lawful guardianship of her parents while relying on section 42-A of the Act which stipulates that the provisions of the Act will prevail in case there is inconsistency.

-By Anaida Khan Pursuing 4th year of BALLB (Hons.) from Dharmashashtra National Law University, Jabalpur