New Delhi: Holding that Muslim Personal Law cannot "override" criminal law, a Delhi court has rejected the bail plea of a Muslim man, accused of kidnapping and raping his 17-year-old lover belonging to the same community.
The court said that the law of the land should be applied uniformly on all and constitutional concept of equality before law cannot be diluted by one set of legislation for Muslims and a different one for non-Muslims.
"Merely because both the girl and the accused happen to be from the same religion i.e. Muhammadan whose Personal Law provides for a different age of marriage than the one provided under the statutory law of the land, does not mean any special indulgence is required to be given to the accused in so far as criminal law of this land is concerned," Additional Sessions Judge Kamini Lau said.
Under the Muslim Personal Law, a girl can marry as per her choice if she has attained puberty.
"I may observe that India is governed by secular concepts provided under the Constitution and Sharia cannot override the same. The Muslim Personal Law only applies to cases relating to marriage, divorce and personal relations but has no applicability in case of a criminal liability," the judge said.
The court's observation came while dismissing the bail plea of a man, accused in a kidnapping and rape case of a 17-year-old girl.
The accused told the court that the girl was in love with him and they wanted to marry but this was not acceptable to her parents and she went to Jaipur with him of her own will.
He admitted that they had developed physical relations there and thereafter the girl had returned to her home.
He also said that the girl had given her statement against him under her parents' pressure but now both the families are ready to solemnize their marriage and the dispute has been resolved between them.
He was arrested under provisions of the IPC dealing with kidnapping and the Protection Of Children from Sexual Offences (POCSO) Act dealing with sexual assault.
The court dismissed the bail plea saying the girl in her statement before a magistrate had specifically alleged that the accused had taken her to Jaipur where they stayed for three days and during this period he raped her.
The court said that though there exists disparity in the age of consent in so far as the Muslim Personal Law governing marriage is concerned vis-a-vis that of other religions, but there can be no two views that "there is, as much need to protect young Muslim women from sexual abuse and exploitation as any other women in India".
"Muslim parents are as much entitled to protect their minor daughters from sexual abuse and exploitation as any other Indian irrespective of religious considerations. No separate parameters can be adopted for Muslim offenders only because the complainant happens to be from the same religion.
"No person can be permitted to make a mockery of secular criminal laws of India nor can any offender be permitted to take shortcuts by resorting to selective application of Sharia and Personal Laws in order to evade a criminal liability under the existing Penal laws," the court said.
The court also said so far as the IPC and the POCSO Act are concerned, religion of any or both the parties make "no difference" to the application of law which has been uniform in all the cases.
"The object of this special legislation (POCSO Act) cannot be defeated by creating a class discrimination on the basis of religion, as is being contended by the counsel in this case," the judge said.
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