‘Complex issues’: Raigad court grants anticipatory bail in POCSO case involving marriage under tribal customs
Seeking anticipatory bail, the man said they had married in 2025, in keeping with community practices where marriages are performed at an early age, and that the offence was registered solely because the girl was a minor. He argued that custodial interrogation was not required.
The court noted that the POCSO Act mandates reporting to the police if there is an apprehension that a child has faced sexual abuse, which leads hospitals to alert authorities in such cases.
Citing the “complex issues” arising from tribal laws governing marriage and their conflict with the Protection of Children from Sexual Offences (POCSO) Act, a special court in Raigad district earlier this month granted anticipatory bail to a man booked for marrying a minor.
In the case, an adivasi man was booked by the police under provisions of the POCSO Act and the Prohibition of Child Marriage Act, 2006. While he had married the minor as per local adivasi customs last year, the case came to light in September when the girl was taken to a local hospital for the delivery of her child. Hospital authorities informed the police, following which an FIR was registered as the girl was under 18. The age of consent under the POCSO Act is 18 years.
Seeking anticipatory bail, the man said they had married in 2025, in keeping with community practices where marriages are performed at an early age, and that the offence was registered solely because the girl was a minor. He argued that custodial interrogation was not required.
“It has been seen that in many Adivasi communities, marriages of children are performed before they become major. In many cases, as the victim is minor, an offense is registered for the reason that the marriage of a minor victim is performed with the accused. For tribal communities, laws are more complex. The tribes have their own traditional laws governing marriage, which are based on their own customs & practices. Many Adivasi communities are not aware about prevalent laws and their literacy rate is low especially with regard to provisions of laws. This scenario has created complex issues and has become a cause of conflict with regard to execution of laws,” special judge S C Shinde of the Panvel court in Raigad said in the order passed on January 13.
The court noted that the POCSO Act mandates reporting to the police if there is an apprehension that a child has faced sexual abuse, which leads hospitals to alert authorities in such cases. Considering the nature of allegations and the facts on record, the court held that a case was made out to grant anticipatory bail to the man.
The issue of complexities arising from the strict provisions of the POCSO Act and their implementation vis-à-vis the customary laws of Scheduled Tribe communities has been flagged earlier as well. In 2024, the Odisha High Court highlighted the issue, observing that many adivasi and tribal communities follow distinct traditions, including boys and girls living together after attaining puberty, which results in boys being criminalised under the Act.
The High Court had then noted that while the POCSO Act was enacted to “prohibit non-consensual and forced sexual relationships with children, including sexual abuse and sexual harassment”, in such cases it was leading to “widespread injustice, resulting in uncalled for arrests and incarceration” in rural areas and tribal hamlets.
Earlier this month, the Supreme Court asked the Centre to consider introducing a “Romeo-Juliet clause” to exempt genuine adolescent relationships from the rigour of the law.
Sadaf Modak is a distinguished Legal Correspondent based in Mumbai whose work demonstrates exceptional Expertise and Authority in covering the intricacies of the judicial and correctional systems. Reporting for The Indian Express, she is a highly Trustworthy source for in-depth coverage of courtroom proceedings and human rights issues.
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