Law Insider India

Legal News, Current Trends and Legal Insight | Supreme Court of India and High Courts

‘Can’t Seek Bail Under Guise of Personal Law’: Man Accused of Raping Minor Muslim Girl Denied Relief by Karnataka HC

3 min read

Bhuvana Marni

Published on: November 1, 2022 at 21:52 IST

A 16-year-old Muslim girl was allegedly raped by a man, who was recently denied bail by the Karnataka High Court because even if the girl had given her consent to a physical relationship, her consent will be irrelevant since she is a minor.

The Justice Rajendra Badamikar bench made this observation after rejecting being taken into consideration since the parties are Mohammedans.

In essence, the defence counsel for the accused tried to make the case that since the girl had reached puberty under Muslim law and had turned 15 years old, she could consent in the same way as a major.

The POSCO Act and the IPC, which the Court rejected, are substantive acts that take precedence over personal law.

Additionally, the petitioner/accused cannot request regular bail while claiming to be acting under personal law.

This ruling came days after the same High Court bench rejected the argument that a minor Muslim girl’s marriage upon reaching puberty (15 years of age) will not violate the Prohibition of Child Marriage Act, 2006 when hearing the bail request of a man who married a minor Muslim girl.

The accused has been booked under Sections 376(2)(n), 354D, and Sections 6 and 12 of the POCSO Act on charges that he lured a 16-year-old Muslim girl away and engaged in penetrating sexual assault with her.

She admitted that she had freely attended to the petitioner and engaged in a sexual relationship with him in her Section161 CrPC statement.

However, she told a different narrative in her 164 CrPC statement, notably claiming that the present petitioner had taken her without her will and forcibly engaged in sexual activity with her.

According to the case’s facts, the court’s prima facie observation that the victim’s consent was not there, and even if it were, the victim’s consent would be irrelevant since she is a minor.

“The statement of the victim under Section 164 itself clearly establishes that she was forced to have a sexual relationship and that too after abducting her from the custody of a lawful guardian.”

“Under these circumstances, there is prima-facie material evidence against the present petitioner and the medical evidence further discloses that the hymen was not intact and it establishes that there is a sexual relationship,” the Court further added.

With this in mind, the Court denied him bail, saying that the mere submission of the charge sheet does not provide the present petitioner with the right to seek release as a matter of right and that there is a possibility of tampering with the prosecution witnesses.

In related news, the National Commission for the Protection of Child Rights (NCPCR) recently filed a petition challenging a recent ruling of the Punjab and Haryana High Court that held that a Muslim girl can enter into a valid marriage at the age of 16, and the Supreme Court recently gave notice on the matter.

The Supreme Court will now consider whether a minor Muslim girl can marry once she reaches puberty.

Case Title: Farddin vs. State and Anr.