The Delhi High Court has ruled that a marriage claimed to be valid under Muslim personal law does not protect a man from criminal prosecution for sexual intercourse with a wife who was below 18 at the time.
Justice Sanjeev Narula held that personal law cannot override the protections provided to children under the Protection of Children from Sexual Offences Act, 2012, or the Bharatiya Nyaya Sanhita, 2023.
The court made the observation while refusing to quash a criminal case registered against a man under Section 64(1) of the BNS and Section 6 of the POCSO Act.
Court Rejects Marriage as Defence
The man and his wife had approached the High Court seeking to quash the case. They told the court that they had married when the woman was 16 years and three months old, while the man was 28.
According to the couple, the marriage was voluntary and had taken place with the consent of both families. The woman also supported her husband’s bail plea and wanted him to remain present during her pregnancy.
The couple argued that under Muslim personal law, a Muslim girl who has reached puberty can marry and that the validity of their marriage meant the subsequent sexual relationship could not result in criminal prosecution.
The High Court rejected this argument.
“Marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards,” the court said.
Consent Cannot Override POCSO
The court noted that POCSO defines a child as anyone below 18 and criminalises penetrative sexual assault against a child regardless of consent.
It also referred to Section 63 of the BNS, which treats sexual intercourse with a woman below 18 as rape, while the marital exception applies only when the wife is not under 18.
The court held that even if the marriage were assumed to be valid under Muslim personal law, that validity could not create an exception to POCSO or the BNS.
It said allowing such an exception through judicial interpretation would create a protection that Parliament had not provided.
Earlier Courts Have Taken Different Views
The ruling comes amid differing decisions from courts on the interaction between Muslim personal law, child marriage and POCSO.
In 2022, a Delhi High Court bench had taken a different view in a case involving a Muslim marriage, holding that sexual intercourse between a minor girl and her husband after marriage may not attract POCSO in the circumstances of that case.
The Punjab and Haryana High Court also held in 2022 that, under Muslim personal law, a Muslim girl above 15 could be competent to enter into a marriage contract. That ruling did not specifically decide whether POCSO would apply to sexual relations within such a marriage.
More recently, the Delhi High Court has stated that Muslim personal law cannot override POCSO or the BNS in criminal proceedings involving sexual intercourse with a person below 18.
The court in the present case dismissed the plea seeking to quash the FIR, along with the requests for disciplinary action against the police and compensation.
