Personal Law will not override POCSO Act, Child Marriage Restraint Act
Mr. Rahul @ Nayaz Pasha (petitioner) v. State of Karnatka & Mrs. Shahinabanu
Facts:The mother of the victim filed the case on 05.10.2020 stating the petitioner-accused abducted her daughter aged 15 years on 27.09.2020 when she was sitting holding her phone by gagging with napkin and therefore she was missing from 28.09.2020. Further the victim returned to her home on 03.10.2020 and stated all the story of her abduction to her mother. The accused took her in Goods Vehicle to his relative’s house, kept three days.
Later, in the night, she was brought to a lonely place and her signature was obtained. Thereafter on 01.10.2020, the wife of accused took victim and left her in a house where the petitioner is said to have sexually assaulted her. On 03.10.2020, the victim escaped from the custody of the petitioner.
Petitioner’s contention:The counsel for the petitioner submitted that the girl and accused, fell in love of each-other, eloped and got married before Mutavali.The marriage certificate also said the girl is currently living in his home with his wife. They argued that the medical report is not revealing any sexual assault to the girl.
Court’s contentions : The court stated that the real age of the girl is only 15 years but marriage certificate issued by Mutavali, wherein the signature of victim is obtained shows to her of 19 years. The mother clearly stated that her daughter was missing and the accused abducted and that her daughter was raped.
The consent of the minor girl is immaterial, even if she voluntarily went with the accused. The accused not only abducted the minor of age 15 years that attracts section 363 IPC, but also do marriage that attracts section 9, 10 of CMR Act, 1929. Further he sexually assaulted her that attracts section 4&6 of POCSO Act.
On perusal of the medical report she has refused to allow the doctor for doing physical examination on her private parts. The victim is minor therefore her consent for abduction, marriage, sexual intercourse is immaterial.
By team SLC