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Karnataka High Court dismissed a bail application on 16 June, 2021 filed on the grounds that petitioner/accused being a Mohammedan is allowed to have a second marriage and consent being given by the victim, a minor, for sexual intercourse paves the way for his bail.
Single bench comprising Mr. Justice K. Natrajan stated,
“The personal law cannot override the Special Law of POSCO, Child Marriage Restraints Act and General Penal Code of this country. Merely the parties are Mohammedan that does not mean that the petitioner-accused No.1 has right to marry a minor girl by enticing and abducting her.”
A petition was filed by Rahul @ Nayaz Pasha before the High Court for granting bail in a case filed under various sections of the Protection of Children from Sexual Offences Act (POSCO Act), the Child Marriage Restraint Act and Indian Penal Code. A complaint was filed by the mother of the victim that her daughter, aged 15 years, was abducted by the petitioner-accused on 28.09.2020. On 3.10.2020 her daughter came back and upon enquiry she informed that she was abducted and forced to marry the accused and to perform sexual intercourse. The accused was arrested.
Later, the petitioner- accused contended before the Court that though he was already married, he and the girl fell in love and eloped. They got married in presence of Mutavali. The marriage certificate was also produced. It was also contended by the petitioner-accused that medical records revealed no sexual assault on the girl. He filed an affidavit of the victim showing the age of the victim 17 years and that as her mother was not happy with the marriage, she herself went-along with the petitioner-accused.
The Court, while rejecting the petitioner’s contention stated,
“The consent or the will of the victim minor girl is immaterial and even if she has voluntarily went with the accused, that amounts to abduction or kidnapping under Section 363 of IPC. The accused not only abducted the victim minor girl aged about 15 years, he got married her which attracts Sections 9 and 10 of Child Marriage Restraints Act. Apart from that, he has sexually assaulted her which also attracts Section 4 and 6 of POSCO Act.”
Citing the Supreme Court’s judgment in the case of Satish Kumar Jayanti Lal Dabgar-vs- State of Gujrat (2015)7 SCC 359, the High Court single bench also turned down the no-objection given for bail to be granted to the accused by the victim.
The bench remarked,
“……..the affidavit of the victim stating that the victim herself went along with the accused and got married and she is residing in the house of the petitioner-accused. That cannot be taken her as her consent for granting bail.
Even if the victim stated ‘no objection’, but as she is a minor girl, it cannot be considered as a valid ‘no objection’ as it is against law.”
The court stated that in the interest of the public at large and with an intention to curtail such types of sexual offences, the Court shall ignore the consent of a minor girl giving 'no objection' for granting bail to the accused and the Court should deal with such an heinous offence with an iron hand."
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