Case Name: XXX v. XXX & Ors. – Kerala High Court

Factual Background

The petitioner, the first accused in Crime No. 461/2022 of Mannarkkad Police Station, approached the Kerala High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of the criminal proceedings pending before the Fast Track Special Court, Pattambi. He was accused of offences under Sections 366 and 376(2)(n) of the IPC and Sections 5(l), 6(1), 15(1) and related provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The prosecution alleged that the accused had taken the victim, who was 17 years old, to his residence and repeatedly sexually assaulted her between 23 and 26 October 2021. The petitioner contended that the victim was his legally wedded wife. According to him, they had married under Islamic rites when she was approximately 17 years and one month old. He relied on the then-existing Exception 2 to Section 375 IPC, arguing that sexual intercourse by a man with his wife did not constitute rape where the wife was above 15 years.

The victim’s side opposed quashing, arguing that she was below 18 and therefore a “child” under POCSO, making sexual intercourse with her punishable irrespective of the alleged marriage.

Court’s Analysis

The Court first reiterated that its inherent power to quash criminal proceedings must be exercised sparingly. At the quashing stage, the Court is not expected to conduct a mini-trial or assess disputed evidence. The relevant question is whether the allegations, if accepted at face value, disclose the essential ingredients of the alleged offences.

The Court found that the allegations in the First Information Statement, including that the victim was taken to the accused’s house and repeatedly subjected to sexual intercourse, prima facie disclosed the alleged offences. Whether the allegations were ultimately true was a matter for trial.

Crucially, the Court held that POCSO applies even where the child is married. The victim was 17 at the relevant time and therefore fell within the statutory definition of a child, which covers every person below 18 years. The Court relied on Khaledur Rahman v. State of Kerala, observing that marriage or personal law cannot exclude the operation of POCSO.

The Court further relied on Section 42A of POCSO, which gives the Act overriding effect in case of inconsistency with another law. Thus, sexual intercourse with a girl below 18 attracts POCSO regardless of whether she is the accused’s wife.

On the rape charge, the Court relied on the Supreme Court’s decision in Independent Thought v. Union of India, which read down Exception 2 to Section 375 IPC so that the marital exception does not protect sexual intercourse with a wife below 18 years.

Order of the Court

The Kerala High Court dismissed the petition. It held that the allegations prima facie disclosed the commission of the offences and that the matter was not appropriate for quashing under Section 528 BNSS. The Court clarified that its observations were only for deciding the quashing petition and would not prejudice the trial.

Key Takeaway

Marriage does not create an exception to POCSO. Where one party is below 18 years, sexual intercourse with that child can attract POCSO liability irrespective of the validity of the marriage or the parties’ personal law. The judgment reinforces the statutory priority of child protection over marital or customary claims.

Written by Adv. K. Sri Hamsa