Assam action on child marriage | Gauhati HC grants bail to 9 men in child marriage cases, asks what is POCSO offence here?

“These are serious allegations. We are not acquitting anyone here. Nobody is preventing you (police) from investigating,” the bench observed.

The HC granted bail to nine people from Bongaigaon, Morigaon, Nagaon and Kamrup districts, facing charges of child marriage in four cases.

Assam Police has slapped charges on them under POCSO Act, making a presumption of sexual assault in case of child marriage involving girls below the age of 14.

Sexual assault that is not penetrative carries a minimum imprisonment of 3 years, which may extend to 5 years with a fine. The offence is non-bailable and cognisable, which means police can make an arrest without warrant.

Justice Shyam observed that these are “not matters for custodial interrogation,” and declined the State’s claim for custody.

Additional Public Prosecutor, Assam, D Das told the court that Section 6 of POCSO Act, which deals with aggravated penetrative sexual assault, had been invoked in one of the four cases. The offence carries a minimum sentence of 20 years, and the maximum sentence may extend to life imprisonment, which means imprisonment for the remainder of natural life of the person or the death penalty.

“You proceed under law, file a charge sheet; if he is convicted, he is convicted,” the court observed. “This is causing havoc in the private life of people. There are children, there are family members, there are old people. This [child marriage] may not be a good idea — obviously it is a bad idea — but we will give our views when the right time comes.”

Right now, Justice Shyam said, the “only issue is whether they should be arrested and pushed into jail. You don’t have space in jails; come up with bigger jails.”

Legal experts have raised questions on legality of arrests under POCSO Act for child marriage.

Swagata Raha, legal researcher with a focus on the POCSO law, said: “There is no such presumption of sexual assault on every case of child marriage for invocation of POCSO Act. We often find that minor victims do not testify against the accused in consensual cases, and proving the victim’s age is also a challenge for the prosecution.”

Raha co-authored a study in December which focussed on POCSO cases in four states, including Assam, and found that one in four cases under the law are consensual and have lower conviction rates.

Guwahati-based lawyer Aman Wadud, who is also appearing in similar child marriage-related arrests, said invocation of POCSO in these cases prolongs jail term. He said, “POCSO is a very stringent legislation, where life imprisonment is the maximum punishment. Police are invoking POCSO to complicate things and prolong the incarceration. In these cases, even custodial interrogation is not required (and) mass arrest is destroying families.”

POCSO, he said, was enacted to safeguard children from sexual exploitation. But facts and circumstances are “totally different” here, Wadud said. “In most cases, husbands and wives are happily living with children — no questions of sexual explanation arise. POCSO shouldn’t be invoked in these cases, (and) many courts are rightly granting bail,” he said.