Point of Law: Muslim girl on attaining 15 years is entitled to marry a person of her choice.

ORDER :

1. Petitioner is indicted for the offences of kidnapping and rape of a minor and seeks reprieve from detention. He claims that he had validly married the victim under the personal laws applicable to them. Despite the victim being a minor, petitioner urges that he be granted regular bail as the prosecution is inherently illegal.

2. Petitioner is facing an investigation into the alleged commission of offences punishable under sections 366, 376(2) (m) and 376(3) of the Indian Penal Code, 1860 and under sections 5(j)((ii), 5(i) and section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) in Crime No.1604 of 2022 of Thiruvalla Police Station.

3. According to the prosecution, the accused had abducted the minor victim, who is a native of West Bengal, and committed repeated penetrative sexual assaults during the period before 31.08.2022, due to which the victim became pregnant and thereby, the accused committed the offences alleged.

4. The incident came to light pursuant to an intimation received from the Family Health Centre, Kaviyoor when the victim had gone there for an injection for her pregnancy. On noticing the victim’s age as 16 from her Aadhaar Card, the Medical Officer immediately informed the police on 31.08.2022.

5. Sri.N.Anand, the learned counsel for the petitioner, contended, with elan, that the allegations are based on a wrong notion as the victim is petitioner's wife, and they had married each other in accordance with the Mahomedan law on 14-03-2021. The learned counsel contended that since Mahomedan law permits marriage of girls below 18 years and such marriages being legally valid, he cannot even be prosecuted for the offence of rape or those under the POCSO Act. Adv.Anand further contended that the victim is presently residing with the parents of the accused and, therefore, no purpose would be served by the continued detention. Learned counsel also contended that petitioner was arrested on 01.09.2022 while they were living a happy married life and also that his wife needs his presence and support during the time of her pregnancy. The learned counsel also argued that in any event, considering the young age of the petitioner and the existing marital relationship between them, continued detention is neither essential nor does it serve any purpose.

6. Sri. K.A. Noushad, the learned Public Prosecutor, opposed the application and contended that the date of birth of the victim is 16.12.2006, and hence she is, at present, less than 16 years of age. It was further contended that during the course of the investigation, it was revealed that the victim was abducted by the petitioner from her parents and that the alleged marriage is unknown to her parents. The learned Public Prosecutor further submitted that even if it is assumed that the marriage had taken place, the same is not a justifiable reason to ignore the provisions of the POCSO Act as the said Act will prevail over the Mahomedan law. It was also submitted that the investigation, which is still continuing, has not unearthed any convincing evidence even to prove the alleged marriage.

7. I have considered the rival contentions.

8. Petitioner and the victim are both alleged to be Muslims. While the petitioner is 31 years in age, the victim is only 15 years and 8 months on the date of registration of the FIR (date of birth is 16.12.2006). The crime was registered after intimation was received from the doctor whom the victim and the petitioner had approached for a checkup on her pregnancy. Petitioner was arrested on 01-09-2022 and has been in detention since then. It is alleged that their marriage took place on 14.03.2021 in West Bengal as per Islamic rites and customs under Mahomedan law and was registered under the West Bengal Act XXVI of 1961. The age of the victim at the time of marriage was, therefore, only 14 years and 4 months.

9. Muslims are governed by their personal laws in the matter of marriage. Article 251 in the