The Delhi High Court has ruled that a marriage recognised under Muslim personal law cannot grant immunity from prosecution under the Protection of Children from Sexual Offences (POCSO) Act or the Bharatiya Nyaya Sanhita (BNS) for sexual intercourse with a wife who was below 18 at the time.
Justice Sanjeev Narula delivered the observation in an order dated September 23, released on Saturday, while refusing to quash a criminal case against a man booked under Section 64(1) of the BNS and Section 6 of the POCSO Act.
The case before the court
The case involved a woman who was 16 years and three months old when she married the petitioner, then nearly 28, on December 20, 2024. The couple subsequently lived together and she became pregnant. Her age came to light when she visited a government hospital in Delhi during her pregnancy, after which the police registered a case.
The petitioners argued that under Muslim personal law, a Muslim girl who had attained puberty was competent to marry, and that the subsequent sexual relationship could therefore not attract criminal liability.
What the court held
Justice Narula rejected the contention, holding that POCSO fixes 18 as the age below which consent to sexual activity has no legal efficacy. "Put simply, marriage does not advance a child's age. A person who is sixteen before the ceremony remains sixteen afterwards," the judge observed.
The court held that personal law may determine whether a marriage has been contracted and the civil consequences that follow, but cannot supply an exception to criminal law where Parliament has provided none. It further noted that the marital exception under the BNS applies only where the wife is 18 or older.
The court acknowledged that individual cases may involve "affection rather than violence, and relationships rather than predation", but said that was precisely why Parliament had prescribed an objective age threshold rather than making criminal liability dependent on subjective intention. It also declined the petitioners' prayers for disciplinary proceedings against police officials and compensation.
Sources:
Hindustan Times: No personal law immunity from Pocso case for sex with minor wife: Delhi HC
The Hindu: Muslim marriage cannot override POCSO law: Delhi High Court