AGE OF CONSENT AND THE AUTONOMY OF PERSONAL LAWS: ANALYZING THE CLASH BETWEEN POCSO ACT AND MUSLIM PERSONAL LAW IN INDIA

Abstract

The POCSO Act, 2012 is a distinctive legislation aimed at providing robust legal safeguards to girls below 18 years of age against sexual offences, abuse, and harassment. Nonetheless, believers of a specific religion are subject to the religious personal law. For example, Muslims are subject to Muslim personal law for religious matters such as marriage, which is formally given statutory recognition under Muslim Personal Law (Shariat) Application Act, 1937. it is a well settled principle that special law will not prevail over personal law. Now the problem is that under Muslim law, completing 18 years of age is not necessary for marriage, rather, to reach at the age of puberty is one of the necessary elements for marriage and a girl may attain the puberty at the age of 15 or 16 years or before as it usually happens nowadays.

Although a minor may give consent, the POCSO Act treats such consent as legally ineffective for those under 18. In such situation, if POCSO Act has been given an overriding effect over Muslim personal law, a Muslim girl who marries legally as per Muslim law at the age of 15 or 16 but below 18 years will not be a valid marriage. This is questionable because the said special law is given a situation to prevail over personal law relating to marriage. In this context.  The conflicting judgements of various High Courts in recent past have made it more complex. And that’s why authors think that there is a need to critically analyze this issue and find out what could be the best solution.