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POCSO Act overrides Muslim personal law; husband liable for sex with minor Muslim wife: Kerala High Court

Referring to the personal law in question, the Muslim Personal Law (Shariat) Application Act of 1937, the Court noted that it statutorily recognizes that in all questions relating to marriage, the rule of decision shall be the Muslim Personal Law

However, after the coming into force of the Prohibition of Child Marriage Act, 2006, it is questionable whether the said personal law will prevail over the special statute relating to marriages, the Court said.

In the present case, the Court noted that the allegation of the investigating officer was that the victim, when she was only 14-years-old, was enticed by the accused without the knowledge of her parents.

Since the accused was booked under the Indian Penal Code as well as the POCSO Act, the Court went through the provisions of both and opined that sexual exploitation of every nature against a child is treated as an offence.

Referring to the maxim ‘Generalia Specialibis Non Derogant’ – a special law will prevail over the general law and ‘Specialia Generalibus Derogant – the Court said that marriage is not excluded from the sweep of the POCSO Act.

When the Courts are confronted with such a situation, the Courts’ approach should be “to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific,” the Court said in its order.

Further, it held that when the provisions of a statute are repugnant to, or contrary to the customary law or personal law, in the absence of any specific exclusion of the said customary or personal law from the statutory provisions, the statute will prevail, and the personal law or the customary law shall stand abrogated to the extent of the inconsistency.

“On an appreciation of the above principles, it can prima facie be held, for the purpose of this bail application, that the very marriage allegedly entered into between the petitioner and the victim cannot be relied upon as a legally valid marriage,” the Court said as it dismissed the bail application.

Source: Barandbench

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