POCSO v. IPC: Menace of Child Marriage in India

There are plethora of laws in India like Protection of Children from Sexual Offences Act (POCSO), Prohibition of Child Marriage Act (PCM), Protection of Women from Domestic Violence Act (PWDV), Commissions for Protection of Child Rights Act (CPCR) and Indian Penal Code (IPC) which protects children from the menace of the Child marriage and their sexual exploitation at the hands of their husbands.

Recently, Bachpan Bachao Andolan (BBA), an organisation which works for the welfare of the children in India, filed a Writ Petition before Supreme Court of India in February 2016. This Writ Petition was filed to protect the children from the curse of child marriage granted by the society in earlier days, and still canvassed by the people due to lack of awareness and education. It also sought to protect the children from the evil of child marriages and marital rape in their marriages, through the POCSO Act.

The major issue which is raised by this petition is regarding the immunity from the offence of Rape which is granted by the Section 375 of the Indian Penal Code (IPC), which renders the children deprived from any recourse to remedy when they are married before the age of 18 years. The IPC grants immunity to the husband of the wife above the age of 15 years. This lacunae, is said to be covered by the offence being committed under the POCSO Act, which is called as penetrative sexual assault, and aggravated penetrative sexual assault. Contrary, Courts in India do not also apply the POCSO Act, due to the immunity, and does not consider the overriding section of 42A of the POCSO Act. They fail to distinguish between two offences.

Supreme Court gave an appropriate Order on 05.01.2017, after hearing the above mentioned writ petition, in which it clearly stated that this matter must be taken to the Ministry of Women and Child Development[1], as section 46 of the POCSO Act provides the power to Central Government to remove any difficulty which arises in giving effect to provisions mentioned under the Act.

Indian Penal Code, 1860 also does provide protection to the wifeunder section 498A which defines cruelty and that may cover to an extent theoffences which is illustrated by the POCSO Act. Further, PWDVAct also provides for the civil remedies for such type of offence.

Lately, Gujarat High Court encountered a case regarding child marriage under the Sharia Law, which was in violation of the PCM Act. This case was filed for the quashing of FIR against a Muslim major person who solemnized his marriage with a minor Muslim girl, who had attained the age of puberty.[2] When the provisions of the POCSO Act and PCM Act along with the IPC are applied to, then the offence is made out for the kidnapping of child under section 361 read with section 363 of IPC, along with the offence of aggravated penetrative sexual assault under section 5 and 6, attempt and abetment of such offence under the section 18 of the POCSO Act, and section 9, 10 and 11 of the PCM Act, for conducting a child marriage.

Unfortunately no case was registered under the POCSO Act and PCM Act in the abovementioned case, and case was filed only under IPC.  Further, Justice J.B. Pardiwala held that there should no coercive measure be taken against the accused while investigating the case by the police, for kidnapping of the minor. He also ordered that the investigation must be pursued as per the principles which were laid down by him in the case of Yunusbhai Usmanbhai Shaikh v. State of Gujarat. [3]

In the Yubusbhai Usmanbhai Shaikh v. State of Gujarat[4] case, the same Judge i.e. Justice Pardiwala quashed the FIR against the applicant stating the reason that he relied upon the Delhi Court Judgment of Lajja Devi v. State[5], in which the Delhi Court laid down that if the girl is above the age of 16 years and gives a statement regarding the consent concerning the marriage, then that statement could be considered for quashing of FIR charging the accused with offence of kidnapping and rape. Though he left the FIR open as far as the PCM Act was concerned.

While, quashing the FIR regarding the offence of kidnapping and rape under IPC, Justice Pardiwala, also absolved the accused from the charge under section 18 of the POCSO Act, regarding which there was no observation in the above mentioned Delhi High Court Judgment. Further, it is pertinent that POCSO Act does not mention anything about the consent of child regarding any offences which makes consent of such immaterial[6], then also Gujarat High Court in the Yunusbhai Usmanbhai Shaikh v. State of Gujarat case imported such matter of consent to the POCSO Act.

Justice Pardiwala also declared in Yubusbhai Usmanbhai Shaikh v. State of Gujarat, that the law laid down in Mujamil Abdul Sattar Mansuri v. State of Gujarat[7] was not good law as it did not discussed the effect of PCM Act in that case and quashed the FIR, stating that, the consent of the minor girl was in favor of the applicant. The Mujamil case was also decided by Justice Pardiwala.

Therefore cases, like Jainulaabedin Yusuf Ganji v. State OF Gujarat & Anr., Yunusbhai Usmanbhai Shaikh v. State of Gujarat, and Mujamil Abdul Sattar Mansuri v. State of Gujarat and many more like them does not take the violation of POCSO Act and PCM Act seriously.

POCSO Act does not mentions anything about the child marriage, though it does covers the persons who are related to the child through marriage, blood or adoption, under the definition of aggravated penetrative sexual assault, if they commit a penetrative sexual assault. Clearly, a husband is covered under the POCSO Act.

If Section 42A of the POCSO Act is followed then husband would also be liable, irrespective of his immunity under IPC, and hence the offence of the rape and aggravated penetrative sexual assault, are separate offences under the ambit of the different Acts. For instance, in the case of Yunusbhai case, Gujarat High Court considered consent of the child and absolved the accused, which resulted in deciding the case of penetrative sexual assault on the lines of the offence of rape, and if that case is followed the immunity which is given to the husband should also be given under the POCSO Act.

Application of the POCSO Act in the marriage would prevent the marital rape in the marriage. This would mean that person below 18 years who are still married would be given protection against the marital rape while above 18 years would have no recourse to any such protection. Wouldn’t that be an inequality?

[1] Bachpan Bachao Andolan v. Union of India and Ors., Writ Petition (Civil) No. 1032/2015, Order dated 05.01.2017

[2] Jainulaabedin Yusuf Ganji v. State OF Gujarat & Anr., Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 30537 of 2016

[3] Jainulaabedin Yusuf Ganji v. State OF Gujarat & Anr., Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 30537 of 2016

[4] Yunusbhai Usmanbhai Shaikh v. State of Gujarat, 2015 (3) G.L.R. 2512

[5] Lajja Devi v. State, 2013 Criminal Law Journal 3458

[6] Marimuthu v. Inspector of Police, 2016 SCC Online Mad 10175

[7] Mujamil Abdulsattar Mansuri v. State of Gujarat, Criminal Miscellaneous Application No. 19811 of 2013 decided 01.12.2014



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

One thought on “POCSO v. IPC: Menace of Child Marriage in India

  1. Its a ridiculous argument , now a days girls in schools or colleges do have intimacy at 15 years and above , then why not husband can consummate the marriage with her minor bride probided she is above puberty . POCSO sbould be applicable only if the girl is not married . As always said , early . marriage is much better than pre marital sex

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