No personal law immunity from Pocso case for sex with minor wife: Delhi HC

Personal laws cannot be a ground to seek exemption from criminal liability under penal statutes, the Delhi high court held as it directed a Muslim man to face trial under the protection of children from sexual offences (Pocso) Act for establishing sexual relations with his underage wife.

The case presented a unique situation before the court where the husband and wife sought quashing of the criminal case claiming to be validly married under the Muslim personal law.

A bench of justice Sanjeev Narula 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 when Parliament has provided none. In the present case, the court said the personal law cannot prevail over the statutory protections accorded to children under the Pocso Act, and the Bharatiya Nyaya Sanhita (BNS).

“A marriage claimed to be valid under Muslim personal law cannot, by reason of that status alone, confer immunity from POCSO or the BNS for sexual intercourse with a wife who was below 18 at the relevant time… It does not necessarily immunise conduct that a secular penal statute independently prohibits,” justice Narula said in the order dated September 23, released on Saturday.

The judge made the observation while refusing to quash a first information report (FIR) registered against a Muslim man for rape under Section 64(1) of BNS and Section 6 of the Pocso Act.

According to the plea, the woman was little over 16 years of age when she married the man, who was 28, in 2024. Her age came to light when she was eight months pregnant and visited a government hospital in Delhi for treatment, following which the police registered a case against the man.

The couple approached the high court to quash the FIR, claiming that they had married voluntarily with the consent of their families. The woman also stated that she had neither been forced into the marriage nor subjected to any non-consensual sexual relationship.

In their plea, the couple argued that under Muslim personal law, a Muslim girl who had attained puberty was competent to marry and that the validity of the marriage meant that the subsequent sexual relationship could not attract criminal liability. They contended that the woman had attained puberty before the marriage and was consequently competent to marry under Muslim personal law.

“A marriage does not advance a child’s age. A person who is 16 before the ceremony remains 16 afterwards. For POCSO and section 63 BNS, that fact is determinative of the legal capacity to consent to sexual act,” the court held, refusing to quash the criminal case.

“POCSO fixes 18 as the threshold for sexual consent. The BNS fixes the same threshold and expressly withholds the marital exception where the wife is below 18. The Prohibition of Child Marriage Act, 2006 [Section] 10 separately defines a female below 18 as a child and attaches penal consequences to an adult male contracting a child marriage,” the 23-page order added.

The court noted that the Pocso framework would be substantially weakened if an adult could answer a prosecution concerning a girl below 18 simply by producing a marriage ceremony recognised by personal law.

“The statutory protection would then depend not upon the age of the child, but upon whether a marriage had been arranged before the sexual relationship was discovered. That would turn the legislation on its head,” the court held.