The Kerala High Court has refused to quash criminal proceedings against a man accused of repeatedly raping a minor girl in 2021, rejecting his argument that she was his lawfully wedded wife. Justice Jobin Sebastian, in an order dated August 19, 2026, made it clear that even a marriage performed under Islamic personal law cannot protect an accused from prosecution under the POCSO Act if the girl involved is a minor.
Background of the Case
The case stems from a complaint registered at Mannarkkad Police Station, Palakkad, where it was alleged that the accused picked up the girl in a car on October 23, 2021, on the pretext of buying her clothes, and took her to his house.
The prosecution's case is that she was then confined to his bedroom and subjected to repeated sexual assault over the next few days, till October 26, 2021. Her parents were separately accused of failing to act despite being aware of the abuse. The case was booked under Sections 366 and 376(2)(n) of the IPC along with relevant provisions of the POCSO Act, and is pending trial before the Fast Track Special Court, Pattambi.
The accused moved the High Court seeking quashment, claiming he had married the girl in July 2021 under Muslim personal law, when she was 17 years old, and that this was confirmed in police statements by the girl, her brother, and the local Khazi. His counsel argued that under Exception 2 to Section 375 IPC, sex with one's own wife is not rape unless she is below 15 years of age.
Court's Observation
The Court was not convinced. It noted that the existence of a valid marriage itself remained a disputed fact requiring trial, since there was no documentary evidence of it. More significantly, the Court held that marital status does not shield an accused from POCSO liability when the girl is under 18.
Relying on Khaledur Rahman v. State of Kerala, the Court observed that the POCSO Act is a special statute for child protection, and personal or customary law cannot override it. It further cited the Supreme Court's ruling in Independent Thought v. Union of India, where Exception 2 to Section 375 IPC was read down to state that sexual intercourse with a wife below 18 years amounts to rape.
Decision
Holding that the allegations, taken at face value, disclosed the essential ingredients of the offences alleged, the Court found no ground to invoke its inherent jurisdiction under Section 528 of the BNSS. The Crl.M.C. was dismissed, with the Court clarifying that its observations were confined to this petition and would not influence the trial court's assessment on merits.
Case Details
- Case Title: xxx v xxx & ors.
- Case Number: Crl.M.C. No. 8899 of 2024
- Judge: Justice Jobin Sebastian
- Decision Date: August 19, 2026
