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Varanasi
Monday, January 24, 2022

15-year-old gives birth in Mumbai, ‘husband’ arrested, search on for cleric – authorities hiding identity of accused?

A 27-year-old man from Mumbai has been arrested for ‘marrying’ and raping a minor girl. Local Agripada police station officials have not name the accused, reports India Today. The ‘marriage’ was solemnized by a cleric in the presence of the the girl’s mother and her ‘in-laws’. 

The incident came into public view on Friday after the 15-year-old delivered a baby at the JJ Hospital in Mumbai. The child’s mother, the rapist’s parents and the cleric who arranged the ‘marriage’ have all been booked under provisions related to the Protection of Children from Sexual Offences Act (POCSO) and Prohibition of Child Marriage Act.

Doctors at the hospital felt suspicious when the accused told them that the girl was 20 years old. The victim was a regular at the hospital ever since she conceived and had gone to JJ hospital multiple times for check-ups, but they always lied that she was an adult. It is not known why her credentials were not checked by the hospital authorities previously.

It was only after the delivery that doctors sought to check her Aadhaar card and discovered that she was born in June 2006. It proved that she was just a minor. Doctors immediately reported the matter to Agripada police, since the ‘wedding’ had been formalized under their jurisdiction and a case was registered on Sunday, December 19.

Police said that late last year, the victim’s mother claims she was unable to support her financially and stopped her education – the girl has studied till 5th standard. Then she decided to marry off the minor. Details of the child’s father remain unclear.

According to the police, the child marriage was solemnized in January. Cases were registered against the ‘in-laws’ and ‘husband’ since they went ahead with the marriage even though they knew that the girl was a minor. 

The girl had been staying at the man’s house at Sewri and was raped ever since. Senior police inspector Shriram Koregaonkar of Agripada police station confirmed the arrest but declined to give further details in the case. The man was produced in court on Monday and remanded to police custody till December 24.

The cleric who conducted the marriage is now absconding and police are on the lookout for him.

A section of Bharat’s secular judiciary has a history of going soft on Islamists, and upholding Muslim personal law (derived from sharia) over secular laws when the two collide. So it remains to be seen how this case plays out.

In 2017, stating that a minor had converted from Hinduism to Islam when she performed ‘nikah’ with an adult Muslim man, a Special Court in Delhi pardoned the accused of rape and kidnapping charges. While pronouncing that judgment, the additional sessions POCSO judge Ashwani Kumar Sarpal said there is ‘no incriminating evidence’ in the minor girl’s statement against the accused.

“Under Muslim law, the girl can perform marriage when she attains puberty, which is generally attained at the age of 14-15 years. After the conversion of the religion, even if the victim was 17 years of age, (she) becomes competent to perform marriage with a Muslim boy.” These are the exact words that the POCSO judge used to justify his judgment.

The girl’s mother had filed a missing complaint in Delhi, and the girl was later found in West Bengal. One can change his/her religion only after turning 18 unless they have parental consent, which was clearly not the case here. Also, POCSO treats sex with anyone under 18 as an offence. So this was a shocking judgement, to say the least.

What is the point of framing laws for protection of children if they are not enforced, or interpreted in creative ways? If puberty is the yardstick, what about precocious puberty?

POCSO judge Sarpal did get it right when he 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,” he stated.

Let’s see how, or if, Parliament resolves this conundrum in its latest bill to increase marriageable age for girls to 21 years, which we are told is aimed at all religious communities. Because if the marriageable age increase applies only to Hindus, there is a well-grounded fear that it might encourage more grooming jihad, especially in rural or semi-urban areas.

Other judges have also accepted Muslim child marriages in the past. The Gujarat High court stopped legal proceedings against a Muslim youth who had married a 17-year-old girl from his community. 

Justice J B Pardiwala observed that a Muslim girl can marry when she attains puberty or completes 15 years of age and that she is is “competent” to get married. This is in spite of the fact that the father of the minor opposed the ‘nikah.’  

Such judgments make the common citizen wonder on the parallel legal regimes that exist in our country, both de jure (officially sanctioned) and de facto (unofficially true). Something as essential as the POCSO law, intended to protect children from sexual predators and adult groomers, cannot be applied uniformly?

The Agripada case might well go down some similar road since even local journalists do not know the identity of the pedophile. 

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