The Madhya Pradesh High Court, denied bail to a POSCO accused as he cannot take the benefit of victim’s religion allowing marriage after puberty. This was held in the case of MOHD. ANSAR VERSUS THE STATE OF MADHYA PRADESH (MISC. CRIMINAL CASE No. 52470 of 2022), which was presided over by single bench of Justice Sanjay Dwivedi.
FACTS OF THE CASE
A bail application was filed by Applicant under Section 439 of the Code of Criminal Procedure for grant of bail. The statement of prosecutrix who is a minor (16 year) has been recorded wherein she has stated that the applicant after giving promise of marriage, developed physical relation with her.
It was submitted by the counsel the applicant and the prosecutrix were known to each other since last six months and the applicant used to visit her house to teach her Quran. Further submitted that the prosecutrix in her statement has stated that since the applicant has given an assurance of marriage to her, therefore, she went to Jhansi with him and from there they went to Delhi where they stayed in a rental room and thereafter, they came to Agra where they stayed for a period of 15 days and during that period physical relation developed between them. The prosecutrix has also stated that she was not aware of the fact that the applicant is already married and this fact came to her knowledge only when it was disclosed by the police.
It has been observed that the marriage of a Muslim girl is governed by Muslim Personal Law, under the circumstances when the prosecutrix is more than 15 years of age, it can be presumed that she has attained the age of majority for the purpose of marriage and as per Muslim Law, a boy or a girl who attained puberty is at liberty to enter into marriage with anyone to whom he/she likes and their guardians have no right to interfere if the match is equal.
As per Muslim Law a person who attains the age of majority and as such, if physical relation is developed that would not be treated to be a rape and, in such circumstances, if a person is tried under the provisions of the POCSO Act, he can be considered to be granted bail.
The learned counsel for the prosecutrix submitted that in this case the marriage has not been solemnized and the applicant has given false promise to the prosecutrix without disclosing the fact that he is already married. He has further submitted that the issue with regard to fact whether a girl attaining age of majority as per puberty after 15 years of age would be governed with the provisions of the POCSO Act or not, is pending before the Supreme Court.
JUDGEMENT OF THE CASE
The court observed that, the applicant has given promise of marriage to the prosecutrix who was aged about 16 years without disclosing the fact that he is already married and also developed physical relation with her. From the statement of prosecutrix, it is clear that she had gone with the applicant as per her own desire but it does not mean that her consent for developing physical relation was a valid consent. In the cases on which reliance has been placed by the counsel for the applicant, the prosecutrix entered into marriage though she was minor and developed physical relation, in such circumstances that was not considered to be invalid.
With the aforesaid observations, the Court found the case to be not fit for bail and accordingly, the application was rejected.
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JUDGEMENT REVIEWED BY VYSHNAVI KRISHNAN.
