The Delhi High Court has held that a marriage claimed to be valid under Muslim personal law cannot, by itself, confer immunity from prosecution under the Protection of Children from Sexual Offences Act, 2012 (POCSO) or the Bharatiya Nyaya Sanhita, 2023 (BNS) for sexual intercourse with a wife who was below 18 years of age at the relevant time. Justice Sanjeev Narula dismissed a petition seeking quashing of an FIR registered under Section 64(1) of the BNS and Section 6 of the POCSO Act, holding that personal law cannot create an exception to criminal provisions where Parliament has provided none.
The case concerned a couple who married on 20 December 2024, when the woman was 16 years and three months old, while the man was nearly 28. The couple subsequently lived together, and the woman became pregnant. The authorities became aware of her age when she visited a government hospital during the pregnancy, following which the FIR was registered. The woman had consistently stated that she had married voluntarily, with the consent of both families, and had not alleged force or coercion.
The petitioners relied on Muslim personal law and contended that the woman, having attained puberty, was competent to marry under the applicable personal law. They argued that once the marriage was recognised, the sexual relationship between the spouses could not attract criminal liability. The Court, however, distinguished between the civil consequences of a marriage and the criminal consequences of conduct independently prohibited by POCSO and the BNS.
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The Court noted that Section 2(1)(d) of POCSO defines a child as a person below 18 years, while Section 3 criminalises penetrative sexual assault upon a child irrespective of consent. Section 42-A further gives POCSO overriding effect in case of inconsistency with other laws. The Court also noted that Section 63 of the BNS treats sexual intercourse with a woman below 18 as rape irrespective of consent and permits the marital exception only where the wife is not below 18.
Relying on the Supreme Court’s decisions in Independent Thought v. Union of India, (2017) 10 SCC 800 and Society for Enlightenment and Voluntary Action v. Union of India, 2024 INSC 790, the Court held that marriage does not diminish the protection afforded by the penal law to a child below 18. It observed that the existence of a marriage does not place sexual intercourse with a wife below 18 beyond the reach of POCSO.
The Court also considered decisions relied upon by the petitioners, including Yunus Khan, Gulam Deen v. State of Punjab, 2022 SCC OnLine P&H 1485 and Javed v. State of Haryana, CRWP-7426/2022 (P&HHC), and held that they did not establish that a marriage recognised under Muslim personal law immunises sexual intercourse with a minor wife from POCSO. In particular, the Court noted that the Supreme Court’s dismissal of challenges arising from Gulam Deen and Javed was on the ground of locus and did not amount to an affirmation of the legal proposition advanced by the petitioners.
The Court further rejected the argument that the woman’s consent, absence of allegations of force, or consent of the families could take the case outside POCSO. It held that while her views remain relevant to questions concerning her welfare, custody, residence, rehabilitation or bail, they cannot alter the ingredients of an offence under POCSO or create a defence not recognised by the statute.
On the facts, the Court held that no case for quashing the FIR was made out. It clarified that it was not deciding whether the marriage was valid, void or voidable, nor whether the petitioner was ultimately guilty of the offences alleged. The Court confined its conclusion to holding that a marriage claimed to be valid under Muslim personal law cannot, merely by virtue of that status, confer immunity from POCSO or the BNS where the wife was below 18 at the relevant time.
The Court accordingly dismissed the petition and declined the prayers for disciplinary proceedings against the police officials and compensation.
