To constitute a crime, the two main elements are mens rea and actus rea. But in this strange case, the marital status and the religion of the victim become the determining factor in whether the act constitutes a crime or not. The question of whether consummation of marriage with a minor girl constitutes “penetrative sexual assault” under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)1 read with Section 375 of the Penal Code, 18602 attains significance in such cases.
As per the exceptions mentioned in Section 375 which defines “rape”, a husband cannot be held guilty of rape if he commits sexual intercourse with his wife, the wife not being under the age of 15, without her consent is not rape. The Supreme Court in the landmark judgment in Independent Thought v. Union of India3 increased the age of the wife to 18 under which the husband will be guilty of rape if sexual intercourse is committed irrespective of the consent. The Court stated:
5. … merely because a girl child between 15 and 18 years of age is married does not result in her ceasing to be a child or being mentally or physically capable of having sexual intercourse or indulging in any other sexual activity and conjugal relations.4
The Supreme Court in Independent Thought5 held that the minimum age prescribed for a valid marriage as per Section 5(iii) of the Hindu Marriage Act, 19556 and the Prohibition of Child Marriage Act, 20067 is 18 in the case of females. The Supreme Court denoted a direct link between the minimum age of marriage and the exception provided in Section 375 IPC. The Court, therefore, held that because the minimum age of marriage under various laws is 18 in the case of females, any sexual intercourse between a husband and wife must be considered rape if it has taken place when the wife is under the age of 18. The direct result of this landmark judgment8 is that a person can be convicted of rape if he commits sexual intercourse with his wife who is under the age of 18 irrespective of her consent.
If a person will be held guilty of rape with his wife (or any other child) under the age of 18, he shall be convicted under the Protection of Children from Sexual Offences Act, 2012.9 Section 4 of the POCSO Act10 prescribes a maximum punishment of seven years, which may extend to imprisonment of life, for penetrative sexual assault of a child.
The curse of child marriage is to a large extent penalised by the effect of Independent Thought11 as the person committing sexual intercourse will be prosecuted under the POCSO Act. However, it becomes a substantial question of law whether this judgment applies to every person irrespective of the personal laws relating to marriage.
This blog analyses the effect of personal laws on the POCSO Act with a special emphasis on Muslim personal law. It will determine whether the husband will be prosecuted under the POCSO Act after the consummation of marriage under Muslim Law if the wife is under the age of 18.
Application of the POCSO Act on Muslim personal law
Marriages in India are governed by the personal laws of every religion. Marriages between Muslims are regulated by Muslim personal law. The Muslim personal law is not a codified law, but it is based on the sources of Islamic law, especially the Quran and the Hadiths. As per Muslim personal law, the minimum age of marriage for girls is when the girl attains the age of puberty. Leading author on the subject of Muslim law Sir Dinshaw Fardunji Mulla in his seminal book “Mulla’s Principles of Mahomedan Law” in Article 195 states, “Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”12 Therefore, it can be generally presumed that the minimum age for a girl, unless the age of puberty is different, is fifteen years.
According to the sharia, once a Muslim enters into a marriage contract with a woman, she becomes his wife and becomes entitled to all of the husband’s rights. Additionally, if they agree to it, the couple can get married and move into their new home at any time. However, it is strongly advised for them to cut this time in half as much as they can in order to enjoy the benefits of marriage — unless there are some pressing issues, like furnishing the home or being preoccupied with other activities like studying or other obstacles that might postpone the consummation.
A question then arises, if a marriage of a girl of less than 18 years of age is consummated, would the husband be held guilty of rape? It is a substantial question of law, as its determination in a positive way will conclude that the POCSO Act will have an overriding effect on the Muslim personal law.
A comparative analysis between the Hindu and Muslim marriages suggests that if a Hindu girl marries before the age of 18 and has sexual intercourse in the course of the marriage, the husband will be held guilty of penetrative sexual assault under the POCSO Act, irrespective of whether the sexual intercourse was consensual or non-consensual.
There are various conflicting judgments of different High Courts which deals with the question that whether the POCSO Act will have an overriding effect on the Muslim personal law on marriage.
The Delhi High Court in the judgment of Fija v. State (NCT of Delhi)13 held where the accused, who was a Muslim, had sexual intercourse in the course of marriage with his wife who was under the age of 18 and a Muslim, was not guilty under the POCSO Act as the personal law has an overriding effect on special laws. The Delhi High Court differentiated this case from the judgment of Mohd. Imran Khan v. State (NCT of Delhi)14 in which it denied to quash the FIR filed against the petitioner who was accused under the POCSO Act of having sexual intercourse with a girl under the age of 18. The Court in this case stated that the sexual intercourse did not take place in the course of a marriage but in the garb of a promise to marry the girl, therefore, the POCSO Act will be applicable.
The Karnataka High Court in Aleem Pasha v. State of Karnataka15 observed that the POCSO Act is special legislation to protect children from sexual offences and therefore, it will have an overriding effect on Muslim personal law. The Court noted that a person will be held guilty of penetrative sexual assault under the POCSO Act if the wife is under the age of 18 even if the sexual intercourse took place in the course of the marriage. The petitioner, who was seeking bail, argued before the High Court that since the girl had reached puberty in the present case and that Mohammedan law treats reaching puberty as a consideration for marriage at the age of 15, there had been no violation of Sections 9 and 10 of the Child Marriage Restraint Act, 192916.
The High Court strongly disagreed with this argument, stating that the POCSO Act overrides personal law and that the age for engaging in sexual activity is 18 years old. The Karnataka High Court also noted in Rahul v. State of Karnataka17 that the POCSO Act will have an overriding effect on Muslim personal law.
The conflicting judgments of the Delhi and Karnataka High Courts have created this question of law which must be settled by the Supreme Court. The POCSO Act is a special legislation with a narrow and specific purpose. The Act is not confined to any particular religion or faith. The Act aims to provide strong legal protection to children from sexual offences. If the POCSO Act is made subject to personal laws, the aim of the Act will become infructuous.
The Independent Thought18 judgment of the Supreme Court clearly stated that there must be no differentiation between a married and an unmarried girl under the age of 18 for the purpose of Section 375 IPC. Any distinction based on the religion of a girl under the age of 18 for the purpose of the POCSO Act will have the same effect of inequality which was shattered by Independent Thought.19 The law laid down in the landmark judgment of State of Bombay v. Narasu Appa Mali20 states that personal laws cannot be tested on the touchstone of fundamental rights, hence the meaning of “law” under Article 13 of the Constitution21 will not include personal laws. However, the application of Narasu22 will not come into play because the question of law here is not related to the application of personal laws, but a distinction created in the application of the POCSO Act between married girls under the age of 18 belonging to the Muslim religion and other religions. The inequality does not arise from the fact that it will have an effect on personal law but from the situation that the effect of discrimination creates inequality on the basis of religion hence violating Article 14.23 Further, the Supreme Court has now in the landmark Sabarimala judgment24 has laid down that the personal laws can be tested on the ground of violation of the fundamental rights.
Therefore, the judgment of the Delhi High Court in Fija25 is per incuriam to the law laid down in Independent Thought26. Therefore, the views expressed by the Karnataka High Court in Aleem Pasha27 hold the constitutional spirit of liberty and dignity and it should be the law of the land. The spirit of the POCSO Act, being special legislation for the protection of children against sexual offences, must be protected. Hence, the application of the POCSO Act must have an overriding effect on Muslim personal law.
† Third year student, BA LLB (Hons.), Rajiv Gandhi National University of Law, Punjab.
12. Sir Dinshaw Fardunji Mulla, Mulla’s Principles of Mahomedan Law, (LexisNexis India).