Stating that a 17-year-old minor had ‘converted’ from Hinduism to Islam when she performed ‘nikah’ with an adult man last year, a Special Court in Delhi has acquitted the man of rape and kidnapping charges.
“Under Muslim law, the girl can perform marriage when she attains puberty, which is generally attained at the age of 14-15 years. After conversion of the religion, even if the victim was 17 years of age, (she) becomes competent to perform marriage with a Muslim boy,” Additional Sessions Judge Ashwani Kumar Sarpal said while pronouncing the judgment on July 18.
The girl had eloped with the man on July 9 last year, following which the two started living together after performing ‘nikah’. Subsequently, a missing person report was lodged by the girl’s mother at Kalyanpuri police station in east Delhi. The family said they ‘suspected’ that that some unknown person had ‘allured’ her, following which a kidnapping case was registered.
According to court documents, the girl was ‘recovered’ from West Bengal after five months in December last year — and was found living with the man. Police brought both of them to Delhi. “After completion of investigation, the chargesheet was filed against the accused and a charge of kidnapping, abducting or inducing woman to compel her to marriage, as well as of Section 6 of the POCSO Act (punishment for aggravated penetrative sexual assault), were framed,” the court records stated.
However, the judge stated that the girl, in her statement, said that she ‘herself’ left with the accused as she ‘wanted to marry’ him, but her parents did not agree to it. According to court documents, the girl, in her statement, also claimed she was an adult. Pronouncing the judgment, the POCSO judge said there is ‘no incriminating evidence’ in the girl’s statement against the accused.
The judge cited two previous judgments — Delhi vs Umesh at the Delhi High Court, decided on July 21, 2015, and Shyam Kumar vs State in a lower court, decided this year. In both cases, it was established that the minor girls left their parents’ house and entered into a relationship with the accused, hence ‘no offence’ of kidnapping or sexual assault could be made out.
“In Shyam Kumar case, the victim was aged about 15 years, whereas in the present case the victim is aged about 17 years. In such a situation, the offences of kidnapping or penetrative sexual assault are not made out,” said the judge, while acquitting the accused. In March, a special court in Delhi had observed that there is a ‘clear conflict’ between the POCSO Act and the Muslim Law.
“A clear conflict is apparent between the Muslim Personal Law and the provisions of the Act with regard to the marriage of a Muslim girl. The Act treats her as a child not capable of giving consent for her marriage and consummation thereof, whereas her personal law clearly authorises her to go ahead and get married at that age. The Parliament probably did not foresee the aforesaid issue,” the court had said.