No rape charge if nikah follows elopement: Gujarat high court

Source:- timesofindia.indiatimes.com

AHMEDABAD: Eloping with a minor Muslim girl does not attract abduction charges nor the charge of statutory rape if the couple gets married. This is because the courts have approved of marriage of Muslim girls before they reach the age of 18 as per Sharia laws.

Gujarat high court recently quashed abduction charges against a youth from Dhoraji, Arif Afvan, who had eloped with a 16-year-old Farida, six years ago. The girl’s father had lodged an FIR against the boy under Sections 363 and 366 of the IPC for luring the girl out of her father’s legal custody. The couple had got married in 2011. The Qazi, who solemnized the nikah of the couple, had also issued a marriage certificate.

After the couple started living together peacefully, Afvan approached the high court to get the kidnapping charges quashed. His advocate placed before the high court various judgments delivered by the Supreme Court and the Gujarat high court which said that a minor Muslim girl is competent to enter wedlock even in the absence of consent by her parents.Justice AS Dave on Tuesday quashed the FIR registered against Afvan.

In December 2016, a city sessions court acquitted 21-year-old Moahmmed Zaid Mansuri of rape charges and violation of Protection of Children from Sexual Offences Act (POCSO) even after DNA samples of the child born to a minor rape survivor pointed to Mansuri being the father. The 15-year-old rape survivor had lodged a rape complaint with Karanj police in February 2015 against Mansuri. But it was the nikahnama (marriage certificate) with the girl that had saved Mansuri.

Mansuri’s lawyer had presented an order passed by the high court three years ago allowing a Muslim girl to marry at her will when she attains puberty . She is considered mature at an age of 15 and is free to take a decision of marriage as per Sharia law.

However, the high court passed a landmark judgment in 2015 in which it held that a special law like Prohibition of Child Marriage Act (PCMA), prevails over Muslim personal laws in cases where Muslims marry off their minor daughters.

Charges of rape, abduction and POCSO violation were dropped against 28-yearold Yunush Shaikh after he eloped and got married to a 16-year-old Muslim girl. But the high court had made it clear that the laws to prevent child marriage cannot be overlooked and action must be taken against those responsible.