Amicus to SC, Muslim Personal Law not Excluded From POCSO, Minor Marriage Attracts Offence

In the matter of muslim minor girl’s marriage the CJI Justice DY Chandrachud observed and has agreed to issue notice in the matter and tag it along with the earlier similar petitions filed by the NCPCR against other High Court judgments which are being taken on the said issue. Although CJI pointed out that if the judgement of Punjab and Haryana High Court is stayed, the girl might be restored to her parents against her wishes.

However, Solicitor General of India Tushar Mehta, appearing for the NCPCR before the court observed and expressed concerns about using personal law as a defence for crimes under POCSO. Before the court, the SG submitted, the girls who are of 14,15,16 are getting married. Can there be a defence for that of personal law? Can you plead a personal and custom law for the criminal offence?

The Supreme Court in the case National Commission For Protection Of Child Rights (NCPCR) v. Javed And Ors observed and has stated that the judgment should not be relied upon as a precedent in any other case. The bench comprising of Chief Justice of India DY Chandrachud and Justice PS Narasimha in the case observed and has passed the interim order while issuing notice in a special leave petition filed by the National Commission for the Protection of Child Rights wherein challenging the judgment on the ground that it goes against the Protection of Children from Sexual Offences (POCSO) Act.  Which prescribes 18 years as the age for sexual consent.

The law officer appearing for the State submitted that, we are on the question if the marriage will be valid at all in the face of criminal law existing and the POCSO Act. The bench headed by CJI Chandrachud observed and has agreed to issue notice in the matter and tag it along with the earlier similar petitions filed by the NCPCR against other High Court judgments which are being taken on the said issue.

It has been requested by the Solicetor General Tushar Mehta to stay the judgment in the meanwhile. It has been pointed out by CJI Chandrachud that if the judgment is stayed, the girl might be restored to her parents against her wishes. Thus, her parents want her to marry her maternal uncle, what is going to happen, the moment we stay is she will be restored to her parents, thus, which she does not want. The bench in its order recorded while issuing notice in the NCPCR plea to settle the question of law that impugned judgment shall not be relied upon as precedent, the pending of further orders.

The Senior Advocate Rajashekhar Rao was appointed as an amicus in a previous petition filed by the NCPCR on the same issue (NCPCR vs Gulam Deen), further, the bench asked him to give his assistance in the instant matter as well. Rao informed the bench that a written submission has been filed by him. It has also been noted that the Kerala High Court in a recent decision held that marriages as per the Muslim personal law are not excluded from POCSO Act and if one of the parties to such a marriage is a minor, the criminal offence under POCSO will be attracted, which is regardless of the validity of the marriage under the personal law.