Sexual Relations with Girl Under 18 Constitute POCSO Offence Even if She Is Wife; High Court Refuses to Quash Sexual Assault Case

Kochi: The Kerala High Court has held that engaging in sexual relations with a girl below the age of 18 is an offence under the POCSO Act, even if the girl is the accused person's wife.

Justice Jobin Sebastian made the observation while dismissing a petition filed by a 27-year-old man seeking to quash further proceedings in a sexual assault case registered by the Mannarkkad police in Palakkad. The court also observed that the POCSO Act, which seeks to prevent sexual offences against children, takes precedence over personal laws.

The case was registered in 2022 on allegations that the accused had abducted and sexually assaulted a 17-year-old girl. The accused argued that the girl was legally his wife and that they had married according to Islamic customs. He also relied on the provision in the IPC under which sexual relations with a wife above the age of 15 did not constitute rape.

However, the High Court pointed out, citing earlier judgments, that the POCSO Act is a special legislation enacted to protect children from sexual offences. Under the law, anyone below 18 is considered a child. Whether the girl is married or unmarried is irrelevant, the court said.

The Supreme Court had earlier amended the IPC provision that stated that sexual relations with a wife above the age of 15 would not amount to rape. Following the judgment in the case by NGO 'Independent Thought' , the age threshold was raised to 18.

The High Court therefore found a prima facie case against the petitioner and directed that the proceedings before the Pattambi Fast Track Special Court could continue.