The Karnataka High Court, while hearing a bail application, observed that provision of second marriage under Mohammedan Law would not cross paths with POCSO, Child Marriage Restraint Act and General Penal Code of the nation.
The bench dismissed the bail application filed by petitioner-accused and stated that though he has right to conduct marriage, it does not justifies his act of marrying a minor girl by enticing and abducting her.
In the instant case, according to the prosecution, the accused abducted the minor girl from her house in September 2020 and later took her to a lonely place and obtained signatures. The first wife of accused took her to a place where it has been alleged that petitioner sexually assaulted her.
The bench stated that consent of minor girl is immaterial, if she voluntarily agreed to go along with accused. Such an act amounts to abduction/kidnapping under Section 363 of Indian Penal Code.
Moreover, the accused not only abducted a 15 year old minor girl, but also married her, which attracted Sections 9 and 10 of Child Marriage Restraint Act. The accused also sexually assaulted the minor which attracted Sections 4 and 6 of POCSO Act.
Apart from dismissing bail application, the bench also turned down “no-objection” given by respondent no. 2, who is also the complainant, and opined that the capacity of understanding of a 15 year old could not be at par with an individual who has completed age of 18 years. The bench further observed that though minor girl gave her consent for abduction or marriage or sexual assault, all of its stands immaterial in the eyes of law.
The bench highlighted that the victim had made a statement under Section 164 of CrPC where she had stated that the accused threatened her to marry him and later took her to his first wife’s home and had sexual intercourse with her.
Citing the importance of recorded statement under Section 164 while considering bail application, the bench stated that allowing a bail application of the basis of “no-objection” would give license to offender to commit similar offences. Thus for safeguarding the interest of public at large, the bench ignored the consent of minor girl.
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