Kerala High Court Rules Marriage to Minor Wife Doesn't Shield from POCSO

The Kerala High Court has firmly reiterated that marriage to a minor does not shield an accused from prosecution under the Protection of Children from Sexual Offences (POCSO) Act or the Indian Penal Code. Justice Jobin Sebastian, presiding over a single bench, dismissed a petition seeking quashing of criminal proceedings against a man who allegedly married and had sexual intercourse with a 17-year-old girl. The court held that even if a valid marriage existed under personal law, the POCSO Act’s definition of a child as anyone below 18 years overrides such exceptions.

A Marriage That Didn't Excuse Criminal Liability

The petitioner, the first accused in Crime No. 461/2022 of Mannarkkad Police Station, faced charges under Sections 366 (kidnapping), 376(2)(n) (repeated rape) of the IPC, and Sections 6(1) read with 5(l) and 15(1) of the POCSO Act. The prosecution alleged that on 23 October 2021, the accused kidnapped the victim in a car, took her to his residence, and repeatedly raped her over four days. The victim was 17 years and one month old at the time. The petitioner contended that he had married the victim on 23 July 2021 in accordance with Islamic rites, and thus the sexual intercourse fell within the marital exception under Exception 2 to Section 375 IPC.

Arguments: Personal Law vs. Statutory Protection

The petitioner’s counsel argued that the marriage was valid and admitted by the victim, her brother, and the Khazi. He relied on Exception 2 to Section 375 IPC, which originally exempted marital rape if the wife was not under 15 years of age, to argue that no rape was committed. Conversely, the respondent and the prosecution maintained that the POCSO Act applies regardless of marriage, and the victim being a minor made the acts aggravated penetrative sexual assault. They also cited the Supreme Court’s decision in Independent Thought v. Union of India which read down Exception 2 to apply only when the wife is not under 18 years.

Why the Marriage Defense Failed

The court examined the scope of inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and noted that quashing is permissible only if no prima facie case is made out. It found that the FIR allegations, taken at face value, disclosed all ingredients of the offences. Addressing the marriage argument, the court observed that no documentary evidence of marriage was produced, and validity could only be determined at trial. More critically, it held that even if a valid marriage existed, the POCSO Act’s overriding effect under Section 42A means that personal law cannot shield an accused. The court followed its earlier decision in Khaledur Rahman v. State of Kerala , which held that marriage is not excluded from the sweep of the POCSO Act. Furthermore, citing Independent Thought , the court ruled that Exception 2 to Section 375 IPC must be read as requiring the wife to be at least 18 years old for the marital rape exception to apply. Consequently, sexual intercourse with a girl between 15 and 18 years, even if married, constitutes rape.

Key Observations

“Sexual intercourse with a girl below eighteen years of age attracts the offences under the POCSO Act, and in such a situation, whether the child is the wife of the accused or not is of little consequence.”

“Even assuming for the sake of argument that a marriage was solemnized as per Muslim religious rites and ceremonies, the same will not salvage the petitioner's criminal liability.”

The Final Verdict

The court dismissed the Crl.M.C. petition, refusing to quash the FIR, final report, or further proceedings. It clarified that the trial court would decide the case on merits without being influenced by these observations. The decision reinforces the legal principle that child marriage does not negate criminal liability for sexual offences, and no personal law exception can override the protective mandate of the POCSO Act.