Inconsistency Of Recent Judicial Decisions With The PCMA and POCSO Act
Secularity, Consent, and Crime: Inconsistency of Recent Judicial Decisions
with The PCMA and POCSO Act.
For the sake of this article , the words 'child' and 'minor' have been used interchangeably.
Child marriage is an age-old evil in Indian society. Minor girls are prevalently wedded off by her family, but in certain instances, they choose to elope. Consummation of marriage follows as a natural second step. However, an area of concern in the implementation of the Protection of Children From Sexual Offences Act (hereinafter, the POCSO Act) is the consummation of child marriages.
Recent High Court decisions give marriages by elopement the benefit of the doubt under personal laws, turning a blind eye towards the problems that arise under the Prohibition of Child Marriage Act (hereinafter PCMA). Such acts are grave violations of both PCMA and the POCSO Act.
This article seeks to illustrate that both these acts are secular and apply to all religions. The author also highlights how consent of the party is irrelevant in such cases and that, despite its existence, the marriage and its consummation are offences against the state at large. Since child marriage is a blatant violation of human rights and rips apart a child's bodily integrity, it is imperative that both these laws operate in tandem to preserve the well-being, development, and ultimately best interests of the child.
Introduction
Recently, the National Commission for Protection of Child Rights (hereinafter, NCPCR) has moved the SC[1]challenging an order by the Punjab & Haryana HC, contending it to be violative of not only POCSO but the PCMA as well.
Under the PCMA, the solemnisation of child marriages is punishable. In order to end the wicked practice, there has been an increasing need for the Act's provisions to be strengthened and its penalties to be harsher. The POCSO Act, on the other hand, strives to safeguard minors against sex assaults.
Article 15(3) of the Constitution empowers the State to make special provisions for children. The Government of India has acceded to the Convention on the Rights of the Child as well, which has prescribed a set of standards to be followed by all state parties in securing the best interests of the child.[2] For the sake of this article , the words 'child' and 'minor' have been used interchangeably. Therefore, both the aforementioned statutes have an overriding effect over any contradictory law in force.
The article seeks to highlight the importance of the statutes-first by illustrating through case laws how they apply across religions and thus are secular; second by showing that even if the minor had exercised free will in choosing marriage and to consummate it thereafter, such consent has no value in the eyes of the law; third, even if such consent existed, the acts would still be a crime, particularly against the child and their kin and generally against the state as a whole. Through the segments, the author communicates how the recent judgements on POCSO matters highlight the shortcomings of the PCMA.
Puberty is presumed on completion of the age of fifteen years.[5] It is thus clear that, as per Mohammedan Law, an individual who has attained the age of puberty can marry without the consent of her parents and has the right to reside with her husband even when she is a minor girl. A couple weeks later, in Fija & Anr V. State Govt Of NCT Of Delhi & Ors[6], the Delhi HC held the same.
Why have these courts relied on personal laws when the decree ought to have been given on the basis of secular, codified laws? The author would like to bring to notice Sec. 42A, which gives POCSO an overriding effect over any law in force in the country. Child marriages, which are common under customary norms, allow for sexual intercourse with children, have repeatedly been given exceptions by courts, despite the fact that these acts come within the purview of PCMA.
Although, per Sec.3 of the PCMA, child marriages are voidable at the option of the party who was a child at the time of solemnisation. Sight must not be lost of the fact that s/he has rights only to stay or annul the marriage and not to enter into them on their own accord. The PCMA does not make any distinction based on personal laws, barring them from any exceptions.
A minor child's marriage is null and void if he or she is taken or enticed out of the custody of the lawful guardian, according to Section 12(a), which addresses the validity of a child marriage by elopement or choice. It can be argued that the minor was tricked/deceived/lured into the marriage since, as a general principle of law, minors are considered to lack the maturity to enter into contractual relationships. Therefore, such marriages may be deemed void.
In Fija's case[7], the defence relied on Imran v. State of Delhi [8]to prove that POCSO is an Act for the Protection of Children from Sexual Abuse and Exploitation and will apply to Muslim law. However, the Delhi HC stated that in the case cited, there was no marriage between the prosecutrix and the accused and that sexual relationships were established based on a false promise to marry. POCSO was only applied to the facts of that case on this basis. The Court differentiated between the two because the present case was not one of exploitation but a case where the petitioners were "in love, got married according to Muslim laws, and thereafter, had physical relationships"[9], thus giving no strength to the charges alleged.
The author finds it pertinent to mention Independent Thought v. Union of India[10] at this juncture. With regards to being in love and thereafter consenting to physical relationships, the SC stated:
"The age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse."[11] Therefore, the child's consent is irrelevant and should not be contested. However, the courts have placed importance on
With respect to getting married per custom, it was held that the "unnecessary and artificial distinction between a married girl child and an unmarried girl child... has no rational nexus with any clear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution."[12]
This arbitrary, artificial distinction leads us to point out Sec.6 of the PCMA, which legitimised the offspring of child marriages, thereby acknowledging the existence of sexual relations within child marriages. It shows a juxtaposition that the act legitimises the consequences of the acts it seeks to punish. Therefore, regarding the consummation of marriage and the reproductive choices of the child.
We must look at Independent Thought v. Union of India, which held that:
The discussion on the bodily integrity of a girl child and the reproductive choices available to her is important only to highlight that she cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband. The human rights of a girl child … whether she is married or not and deserve recognition and acceptance.[13]
Although child marriages are voidable at the option of the party who was a child at the time of solemnisation[14], sight must not be lost of the fact that the husbands and the solemnisers in the above mentioned cases were all adults. The PCMA does not make any distinction based on personal laws, barring them from any exceptions.
Any act to promote marriage or permit it to be solemnised, or negligently fail to prevent it from being solemnised, is punishable by rigorous imprisonment for up to two years and a fine of up to one lakh rupees under Section 11 of the PCMA. Similarly, the POCSO act punishes anyone who abets an offence the same way as an offender.[16] A person who abuses power or a vulnerable position to obtain the consent of a person in control of another person for the purpose of committing an offence under this Act is said to aid in the commission of that act.[17]
The judiciary, however, has had its own interpretations of these provisions. In some cases, courts have taken a soft approach, for instance, in the Yunusbhai Usmanbhai Shaikh v. State of Gujarat,[18] the Gujarat High Court quashed the FIR against the accused as the victim admitted that she had accompanied the accused on her own will and that they were in love and had decided to get married. As child marriage was not a matter of dispute, the court only looked into the free will of the girl to marry the accused through the FIR. The offence under POCSO was completely negated.
On the other hand, the Karnataka High Court, in an almost similar circumstance, in the case of Soni Nihal v. Sri Sandeep Patel[19], stated that criminal proceedings against the accused cannot be quashed. The court observed that before the exercise of power to quash any crime, it must give due regard to the nature and gravity of the crime. It is not only an offence against an individual; it is categorised as an offence against the society at large[20].
Such an inconsistent interpretation of the law is unnecessary and artificial and increases the number of cases pertaining to teen pregnancy, both within the system of marriage and elopements. It is a matter of concern, sociologically and health-wise, that we are getting such a large number of cases
Conclusion
The menace of child marriage is surely a concern for Indian lawmakers. The author observes that harmonisation between PCMA, HMA, 1955, POCSO, and IPC is required for clarity so that no law can become a safe haven for paedophiles. To combat this problem, the Karnataka HC constituted a four-member committee.
In light to the findings, the State of Karnataka amended the PCMA to declare child marriages void ab initio[21], that is, null and void from the outset. It is needed and possible to implement a standard age of consent by following suit to the Karnataka example. Such policy measures would ensure the physical, sexual, emotional, and mental growth and well-being of children, protecting their rights under the constitution from the inconsistencies of personal laws.
End-Notes:
For the sake of this article , the words 'child' and 'minor' have been used interchangeably.
Child marriage is an age-old evil in Indian society. Minor girls are prevalently wedded off by her family, but in certain instances, they choose to elope. Consummation of marriage follows as a natural second step. However, an area of concern in the implementation of the Protection of Children From Sexual Offences Act (hereinafter, the POCSO Act) is the consummation of child marriages.
Recent High Court decisions give marriages by elopement the benefit of the doubt under personal laws, turning a blind eye towards the problems that arise under the Prohibition of Child Marriage Act (hereinafter PCMA). Such acts are grave violations of both PCMA and the POCSO Act.
This article seeks to illustrate that both these acts are secular and apply to all religions. The author also highlights how consent of the party is irrelevant in such cases and that, despite its existence, the marriage and its consummation are offences against the state at large. Since child marriage is a blatant violation of human rights and rips apart a child's bodily integrity, it is imperative that both these laws operate in tandem to preserve the well-being, development, and ultimately best interests of the child.
Introduction
Recently, the National Commission for Protection of Child Rights (hereinafter, NCPCR) has moved the SC[1]challenging an order by the Punjab & Haryana HC, contending it to be violative of not only POCSO but the PCMA as well.
Under the PCMA, the solemnisation of child marriages is punishable. In order to end the wicked practice, there has been an increasing need for the Act's provisions to be strengthened and its penalties to be harsher. The POCSO Act, on the other hand, strives to safeguard minors against sex assaults.
Article 15(3) of the Constitution empowers the State to make special provisions for children. The Government of India has acceded to the Convention on the Rights of the Child as well, which has prescribed a set of standards to be followed by all state parties in securing the best interests of the child.[2] For the sake of this article , the words 'child' and 'minor' have been used interchangeably. Therefore, both the aforementioned statutes have an overriding effect over any contradictory law in force.
The article seeks to highlight the importance of the statutes-first by illustrating through case laws how they apply across religions and thus are secular; second by showing that even if the minor had exercised free will in choosing marriage and to consummate it thereafter, such consent has no value in the eyes of the law; third, even if such consent existed, the acts would still be a crime, particularly against the child and their kin and generally against the state as a whole. Through the segments, the author communicates how the recent judgements on POCSO matters highlight the shortcomings of the PCMA.
PCMA And POCSO Are Secular In Nature
The NCPCR has moved the SC against the order of Gulam Deen v. State of Punjab[3]. The Punjab and Haryana HC observed the case of Yunus Khan[4], in which it had been noted that the marriage of a Muslim girl is governed by Muslim personal law. Per Art. 195 of the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage, provided s/he consents to it.Puberty is presumed on completion of the age of fifteen years.[5] It is thus clear that, as per Mohammedan Law, an individual who has attained the age of puberty can marry without the consent of her parents and has the right to reside with her husband even when she is a minor girl. A couple weeks later, in Fija & Anr V. State Govt Of NCT Of Delhi & Ors[6], the Delhi HC held the same.
Why have these courts relied on personal laws when the decree ought to have been given on the basis of secular, codified laws? The author would like to bring to notice Sec. 42A, which gives POCSO an overriding effect over any law in force in the country. Child marriages, which are common under customary norms, allow for sexual intercourse with children, have repeatedly been given exceptions by courts, despite the fact that these acts come within the purview of PCMA.
Consent Of Minor Irrelevant
A child does not have the right to consent, neither with regard to marriage nor to its consummation, therefore, its existence does not make the act legal.Although, per Sec.3 of the PCMA, child marriages are voidable at the option of the party who was a child at the time of solemnisation. Sight must not be lost of the fact that s/he has rights only to stay or annul the marriage and not to enter into them on their own accord. The PCMA does not make any distinction based on personal laws, barring them from any exceptions.
A minor child's marriage is null and void if he or she is taken or enticed out of the custody of the lawful guardian, according to Section 12(a), which addresses the validity of a child marriage by elopement or choice. It can be argued that the minor was tricked/deceived/lured into the marriage since, as a general principle of law, minors are considered to lack the maturity to enter into contractual relationships. Therefore, such marriages may be deemed void.
In Fija's case[7], the defence relied on Imran v. State of Delhi [8]to prove that POCSO is an Act for the Protection of Children from Sexual Abuse and Exploitation and will apply to Muslim law. However, the Delhi HC stated that in the case cited, there was no marriage between the prosecutrix and the accused and that sexual relationships were established based on a false promise to marry. POCSO was only applied to the facts of that case on this basis. The Court differentiated between the two because the present case was not one of exploitation but a case where the petitioners were "in love, got married according to Muslim laws, and thereafter, had physical relationships"[9], thus giving no strength to the charges alleged.
The author finds it pertinent to mention Independent Thought v. Union of India[10] at this juncture. With regards to being in love and thereafter consenting to physical relationships, the SC stated:
"The age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse."[11] Therefore, the child's consent is irrelevant and should not be contested. However, the courts have placed importance on
With respect to getting married per custom, it was held that the "unnecessary and artificial distinction between a married girl child and an unmarried girl child... has no rational nexus with any clear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution."[12]
This arbitrary, artificial distinction leads us to point out Sec.6 of the PCMA, which legitimised the offspring of child marriages, thereby acknowledging the existence of sexual relations within child marriages. It shows a juxtaposition that the act legitimises the consequences of the acts it seeks to punish. Therefore, regarding the consummation of marriage and the reproductive choices of the child.
We must look at Independent Thought v. Union of India, which held that:
The discussion on the bodily integrity of a girl child and the reproductive choices available to her is important only to highlight that she cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband. The human rights of a girl child … whether she is married or not and deserve recognition and acceptance.[13]
Although child marriages are voidable at the option of the party who was a child at the time of solemnisation[14], sight must not be lost of the fact that the husbands and the solemnisers in the above mentioned cases were all adults. The PCMA does not make any distinction based on personal laws, barring them from any exceptions.
Acts Under Both Statutes Are Crimes
First, the author would like to highlight the important sections pertaining to the penalization of an adult man for marrying a minor girl. As per Sec.9 of the PCMA, a male adult shall be punished with up to two years of rigorous imprisonment or with fine or with both. If the marriage is consummated, he shall also be punished for aggravated sexual penetrative assault with rigorous imprisonment of not less than twenty years, which may extend to life imprisonment, and shall also be liable to fine.[15]Any act to promote marriage or permit it to be solemnised, or negligently fail to prevent it from being solemnised, is punishable by rigorous imprisonment for up to two years and a fine of up to one lakh rupees under Section 11 of the PCMA. Similarly, the POCSO act punishes anyone who abets an offence the same way as an offender.[16] A person who abuses power or a vulnerable position to obtain the consent of a person in control of another person for the purpose of committing an offence under this Act is said to aid in the commission of that act.[17]
The judiciary, however, has had its own interpretations of these provisions. In some cases, courts have taken a soft approach, for instance, in the Yunusbhai Usmanbhai Shaikh v. State of Gujarat,[18] the Gujarat High Court quashed the FIR against the accused as the victim admitted that she had accompanied the accused on her own will and that they were in love and had decided to get married. As child marriage was not a matter of dispute, the court only looked into the free will of the girl to marry the accused through the FIR. The offence under POCSO was completely negated.
On the other hand, the Karnataka High Court, in an almost similar circumstance, in the case of Soni Nihal v. Sri Sandeep Patel[19], stated that criminal proceedings against the accused cannot be quashed. The court observed that before the exercise of power to quash any crime, it must give due regard to the nature and gravity of the crime. It is not only an offence against an individual; it is categorised as an offence against the society at large[20].
Such an inconsistent interpretation of the law is unnecessary and artificial and increases the number of cases pertaining to teen pregnancy, both within the system of marriage and elopements. It is a matter of concern, sociologically and health-wise, that we are getting such a large number of cases
Conclusion
The menace of child marriage is surely a concern for Indian lawmakers. The author observes that harmonisation between PCMA, HMA, 1955, POCSO, and IPC is required for clarity so that no law can become a safe haven for paedophiles. To combat this problem, the Karnataka HC constituted a four-member committee.
In light to the findings, the State of Karnataka amended the PCMA to declare child marriages void ab initio[21], that is, null and void from the outset. It is needed and possible to implement a standard age of consent by following suit to the Karnataka example. Such policy measures would ensure the physical, sexual, emotional, and mental growth and well-being of children, protecting their rights under the constitution from the inconsistencies of personal laws.
End-Notes:
- Ratna Singh, NCPCR moves Supreme Court against HC order allowing Muslim girl over 15 years to enter into valid marriage Bar and Bench - Indian Legal news (2022), https://www.barandbench.com/news/litigation/ncpcr-moves-supreme-court-against-hc-order-allowing-muslim-girl-over-15-years-enter-valid-marriage
- Preamble, The Protection of Children from Sexual Offences Act, No. 32 Of 2012
- Gulam Deen v. State of Punjab, (2022), P&H 1485
- Yunus Khan v. State of Haryana, (2014),P&H 3588
- Dinshah Fardunji Mulla, Principles of Mahomedan law (22 ed.).
- Fija v. State (NCT of Delhi), (2022), Del 2527
- Id
- Mohd. Imran Khan v. State (Govt. of NCT of Delhi), (2011) 10 SCC 192
- Fija v. State (NCT of Delhi), (2022), Del 2527
- Independent Thought v. Union of India, (2017) 10 SCC 800
- Id
- Id
- Id
- Sec.3 ,The Prohibition of Child Marriage Act, no. 6 Of 2006
- Sec.6, The Protection of Children from Sexual Offences Act, No. 32 Of 2012
- Sec.17, The Protection of Children from Sexual Offences Act, No. 32 Of 2012
- Sec.18, The Protection of Children from Sexual Offences Act, No. 32 Of 2012
- Yunusbhai Usmanbhai Shaikh v. State of Gujarat, (2015) 6211
- Soni Nihal Dinesh Bhai v. Sandeep Patel, (2017), Kar 742
- Id
- SubstitutionSec.3,The Prohibition of Child Marriage (Karnataka Amendment)Act, no. 26 Of 2017
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