Kochi: A Muslim man cannot escape criminal liability under the Protection of Children from Sexual Offences (POCSO) Act for having sexual intercourse with his wife if she is below 18 years of age, the Kerala High Court has held.

The court made the observation while dismissing a plea by a man seeking to quash criminal proceedings against him. He is the first accused in a case alleging offences under Sections 366 and 376(2)(n) of the Indian Penal Code (IPC) and Sections 5(l), 6(1) and 15(1) of the POCSO Act.

According to the prosecution, the accused allegedly took the minor girl in a car to his house and repeatedly raped her over four days. Two others are accused of facilitating the offence, while the girl’s parents allegedly failed to report it to the authorities.

The petitioner claimed that the girl was his legally wedded wife and that they had married according to Islamic rites when she was 17 years and one month old. He relied on Exception 2 to Section 375 of the IPC to argue that sexual intercourse with a wife above 15 years did not constitute rape. The prosecution and the de facto complainant opposed the plea.

The court noted that the materials on record prima facie disclosed the alleged offences. It also observed that the petitioner had produced no documentary evidence to establish the alleged marriage, relying mainly on statements given to police by the girl, her brother and the Qazi of the mosque where the marriage was allegedly solemnised. Whether a valid marriage had taken place, the court said, could be determined only after trial.

However, the court held that even assuming a valid Muslim marriage had taken place, it would not absolve the petitioner of criminal liability under the POCSO Act.

Referring to Sections 2(1)(d) and 42A of the POCSO Act and the Kerala High Court's earlier decision in Khaledur Rahman v. State of Kerala and Anr., the court noted that a child under the Act is anyone below 18 years and that the POCSO Act has overriding effect where its provisions conflict with other laws.

The court also rejected the petitioner's reliance on the IPC's marital rape exception, citing the Supreme Court's 2017 ruling in Independent Thought v. Union of India. The Supreme Court had read down Exception 2 to Section 375 to hold that the exception applies only where the wife is not under 18 years of age.

“Even assuming for the sake of argument that a marriage was solemnised as per Muslim religious rites and ceremonies, the same will not salvage the petitioner's criminal liability,” the court observed.
The High Court accordingly dismissed the plea to quash the criminal proceedings.
(LiveLaw inputs)