Introduction:
The Delhi High Court has given bail to an accused who was held liable for committing child marriage and for the rape of a minor under the POCSO Act, 2012.
The Court has cited the huge contrast between the personal laws and the criminal laws, which has caused discrepancies. The court, granting bail to the defendant, asked for a Uniform Civil Code to be brought up.
The court has solely focused on granting bail and has not considered that the criminal laws would overpower the personal laws. The court has failed to hold an accused liable for child marriage, which is prohibited by the Prohibition of Child Marriage Act, 2006 and for aggravated sexual assault of a minor under the POCSO Act.
Background:
The defendant/Petitioner was a 24-year-old who had married a then minor as per the Islamic law, and they even had kids from the marriage. The girl’s stepfather filed a case against the defendant on charges of kidnapping and rape under sections 363 and 376 of the IPC and section 6 of the POCSO Act, 2012, for aggravated sexual assault of the minor. The stepfather filed a case stating that the girl was taken away from his custody and was forced to marry the defendant. The FIR was filed in the name of the mother of the girl, but was signed by the stepfather. The courts observed that the girl was just 14 when she bore her first child due to the sexual assault carried out by the stepfather, and the defendant took the opportunity to marry her and give her the dignity and solace she needed, as mentioned in the judgment.
Key Points:
Criminal or Personal Laws: The court observed that the girl was only 14 as per the documents submitted to it. The Islamic law follows the criteria of puberty as the legal age of marriage, and it is said to be around 15 years of age. While the legal age of marriage is 18 years of age and marriage of anyone below the age of 18 is considered child marriage and is punishable under the BNS, section 85. The court brought in the ongoing struggle they have been facing due to the duality of the laws. The court said that there is a necessity to bring in the Uniform Civil Code as soon as possible to deal with the contravening provisions of the personal and criminal laws. The court has failed to recognise that the criminal laws hold more powers than the personal laws and that criminal laws should be exercised in strict sense to bring about a change.
Bail as an excuse: The Court released the defendant on the payment of a bail amount of 10,000 rupees on an interim bail. The court has mentioned that either the accused or the prosecutrix finds the other to be a victim, and the prosecutrix wanted to be with the defendant and therefore has justified the release of the defendant on bail. The court has overlooked the law. The defendant, being the protector of the girl, does not mean that he can be set free on paying the bail money. The Prohibition of Child Marriage Act was brought in to protect minors from being married off at a young age. Those violating it are to be held liable for their offence. The consent of the minor is not a valid consent, and that should not be taken up as a defence. The court’s ruling in this case might serve as a free pathway for others to follow the same offence.
Conclusion
The court’s call for the UCC is to be applauded, as it would bring in the uniform treatment of the criminal laws relating to Child Marriage. However, many non-UCC sects have raised concerns of infringement on the cultural practices. The cultural practices are to be respected, but practices which are against the welfare of the society are to be overthrown in order to ensure welfare for all. It is the duty of the courts to uphold welfare justice and social welfare, and they should not be focused on gaining from bail given.
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WRITTEN BY: I Sharan
