‘POCSO’ Act and the Karnataka High Court verdict
Muslim laws contradictory to POCSO, ‘Child Marriage Restraint Act’, etc. of the Indian Constitution are not acceptable !
 The laws in the Indian Constitution are supreme in the country. Since India has adopted secularism, the Constitution is given more importance over religion. Despite this, the minorities indulge in acts which are prohibited by the Indian Constitution, but are allowed as per their religion. So, it is a well-known fact that the minorities are the ‘majority’ in crimes. This article throws light on one such anti-social incident that took place in Karnataka. |
1. Sexual torture by a Muslim after kidnapping a minor girl
An FIR has been registered against Nayaz Pasha and his wife in Karantaka. In a complaint, the mother of the victim mentions that her 15-year-old daughter was kidnapped on the midnight of 27th September 2020 by Muslims. We searched for her a lot, but we could not find her. After a week, she returned home crying. When we talked to her, she said that their neighbour Nayaz Pasha had kidnapped and sexually tortured her. She somehow escaped from his clutches and returned home. He had taken her signatures on a blank paper. Hearing the plight of her daughter, the mother lodged a complaint with the Police, who registered an FIR against the accused under Sections 363, 343, 114 and 506 of the Indian Constitution as well as POCSO Act Sections 4 and 6, for kidnaping a minor girl and sexually torturing her. Police then arrested the accused.
2. Sessions Court denied bail to the accused
The wife of the accused said that the accused has married the victim in the presence of a Muslim cleric, she has given the consent to the marriage. Also, the victim has given a certificate of her consent. As per the victim’s mother the certificate was created after taking the victim’s signature on a blank paper. As per the POCSO Act, the consent of a minor girl is not valid. Therefore, the so-called marriage is illegal as per ‘Child Marriage Restraint Act 1929’ Sections 9 and 10. Hence, the Sessions Court denied bail to the accused.
3. The wife of the accused and the minor girl submitted an affidavit in the High Court
Since the Sessions Court denied bail, the accused went to the High Court, where the wife of the accused and the minor victim girl submitted affidavits. The wife of the accused said, “As per Muslim law, more than one marriage is allowed and I have given consent to this marriage”. It was argued in the High Court that the accused and the victim were in love and wanted to marry. However, the mother of the victim was against the marriage. Hence, she has lodged a complaint. The victim has given consent to the marriage with the accused in front of a Muslim cleric and she is staying with the accused as his wife.
4. The victim did not allow doctors to check her up
It was argued by the accused that the doctors have done a medical check-up of the victim. As per the medical certificate, there is no evidence of sexual torture of the victim. However, the doctors said that the victim did not allow any medical check-up. The victim opposed the check-up, which can prove that the sexual torture did take place. This is the reason why sexual torture was not mentioned in the requisite medical certificate.
5. Court clarified that the victim is ignorant, hence, her consent does not have any legal value
A. The High court observed that the victim and her family are being pressurised greatly by the relatives of the accused. Therefore, the victim has signed the document and is agreeing that the marriage did take place. The Supreme Court has clarified numerous times in its verdicts that consent of an ignorant minor does not have any legal value.
B. The High court also observed that there is discrepancy in the victim’s statement given in the Police station and in front of the Magistrate. Despite this, the Court clarified that it cannot grant bail to the accused. As per the Court, the main point is that the victim is a minor and ignorant; hence, there are limitations to her understanding. She cannot express her thoughts in the statement or in front of the Magistrate like the adults can. In her statement to the Magistrate, she clearly says that she was under a lot of pressure, due to which she was forced to sign and got married. On this background, the High Court did not agree that she was in love with the accused or she eloped with him on her own, and the sexual act took place with her consent. The consent of an ignorant minor does not have any meaning.
6. Court said that the Muslim laws, which are against the Special Acts, are not acceptable
As per ‘Child Marriage Restraint Act’ Sections 9 and 10, the marriage of a minor is unlawful. Whereas, Muslims claim that such a marriage is permissible under Muslim law. The Court has categorically said on such arguments that Muslim laws which are contradictory to POCSO, ‘Child Marriage Restraint Act’ and Special Acts of the Indian Constitution are not acceptable. Special Acts have been created for special situations. Hence, these are more powerful than personal laws such as the Muslim laws.
7. Court thought that if the accused is given bail, it would send a wrong message to society and crimes against minors would increase
While denying bail to the accused, the Court cited the verdict of the Supreme Court and said that sexual torture of minors, kidnapping them, taking unlawful consent from them are against Indian laws. Hence, if the accused is granted bail, it would send a wrong message to society. Due to this, crimes against minors would increase.
8. If the accused is granted bail, it is possible that he may commit such crimes repeatedly
In this case, the wife of the Muslim accused also encouraged her husband to commit a crime and assisted him. Hence, her husband cannot be given bail. Muslim law allows multiple marriages; however, it does not mean that one can kidnap a minor girl, torture her sexually and forcibly take her signatures ! If bail is granted in such crimes accepting the reason that the wife of the accused has given consent, then such crimes are bound to increase. Once the accused is free, he would commit such crimes repeatedly. Hence, bail cannot be granted to the accused. Due to these reasons, the Court rejected the bail of the accused.
9. Despite the victim girl being a Muslim, her mother fought fiercely for action against the accused
There is one important aspect in this incident – it is a well-known fact that ‘Love Jihad’ is increasing rapidly in India. Many times, it is observed that Muslims assume fake Hindu names to kidnap Hindu girls. Muslims sexually torture their victims and later abandon them. Later, the victim’s family files a complaint with the Police. Then the Police, Muslims and so-called social workers pressurise the victim’s family. In this incident, even though the victim is a Muslim girl, there was pressure anyway ! The victim’s mother did not succumb to pressure and forced the Police to lodge an FIR against the Muslim and his wife. Not just this, she even went to the High Court so the man is not granted bail.
10. Even in ‘Love Jihad’ cases, Hindus should not succumb to any pressure, but try to lodge an FIR against the accused
When such incidents take place with Hindus, they should not succumb to any pressure, but try to lodge an FIR. It should also be noted that marriage with minor victims, even with their consent, is unlawful. In such incidents, Hindu lawyers should help out to the maximum possible as their duty to protect Dharma. Else, Hindus will have to face such crimes repeatedly. For this reason, creating awareness, powerful unity of Hindus, unity of Hindu lawyers who are ready to protect Dharma and all of them working together is necessary.
– H.H. Suresh Kulkarni (Founder Member, Hindu Vidhidnya Parishad and Advocate, Bombay High Court, 21.6.2021)
Introduction to POCSO Act, 2012To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be ‘aggravated’ under certain circumstances. |