The Karnataka High Court headed by a single bench while dismissing the bail application filed by one Nayaz Pasha held that, even though second marriage is permissible in the Mohammedan Law it cannot override the General and Special laws such as POCSO Act, General Penal Code and Child Marriage Restraint Act of this Country.
The Court observed, the fact that the accused are Mohammedan it does give them the right to marry a minor girl by enticing and abducting her. Her consent is immaterial as a minor even though she voluntarily went with the accused.
It would still amount to an offence under section 363 of IPC. The fact that he not only abducted the victim but also married her would attract section 9 and 10 of the Child Marriage Restraint Act. Section 4 and 6 of POCSO Act for the offence of sexual assault would also be attracted.
The court also turned down the no-objection to be given for the bail that was to be granted to the accused. Considering the age of the victim, her understanding cannot be at par with an adult person even though she had consented to marriage or sexual intercourse.
Even if the victim has stated no-objection it cannot be considered valid. The court in the interest of the society shall ignore the consent of no–objection by the victim for granting bail to the accused.