On 23-09-2025, a Single bench of Justice Arun Monga granted bail to a man accused of marrying a minor girl, who was sexually assaulted by her stepfather. The Court took note of various factors surrounding the validity of the marriage, the illegality surrounding the applicant’s arrest, and other relevant considerations. The Court also questioned whether the time has come to move towards a single framework where personal laws do not override national legislation.
In the present matter, the applicant (husband) got married to a girl on 04-06-2024 under Islamic law, who was sexually assaulted by her stepfather. As a result of the assault, the girl bore her first child and later gave away the infant for adoption. The couple was blessed with another child while the father continues to be in judicial custody.
Earlier, the stepfather had approached the police to lodge an FIR against the husband under Section 363, Indian Penal Code, 1860 (IPC)[1]. During investigation, a medical examination of the girl was conducted, and she was subsequently sent to a Child Welfare Centre, where she underwent another medical examination. Subsequently, Section 376, IPC[2], and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) were added to the chargesheet. The husband was arrested on 06-10-2024.
On 01-08-2024, the girl’s statement was recorded, wherein she stated that she left her home due to cruelty and sexual abuse by her stepfather, which resulted in her pregnancy. On 14-08-2024, the girl’s statement was recorded in connection with the FIR against her stepfather, wherein she stated that she had married her husband out of her own free will.
The Court had heard arguments at an earlier date and granted interim bail to the husband, allowing him to meet his wife and son at the Child Welfare Centre for two hours every day.
Professor Faizan Mustafa, Vice Chancellor of Chanakya National Law University, Patna, and an expert in Islamic law, made references to Indian history and submitted that the validity of a marriage under Islamic law is not to be determined by declaring the marriage void per se. He also made a reference to the Quran, stating that the scripture does not prescribe a specific age for marriage among Muslims and that the only requirements were free consent, puberty, and an understanding of the consequences of marriage. Professor Mohammad Khalid of Jamia Millia Islamia University and Mr. Nehal Ahmed, Assistant Professor of Law at Woxsen University, also concurred.
The applicant submitted that after constant physical, emotional, and sexual abuse by her stepfather, the girl approached him and gave an affidavit affirming that she was 23 years old before getting voluntarily married to him. The applicant, while making submissions regarding the discrepancy in the birth certificate, also mentioned that while giving birth to the child conceived due to the sexual assault, the hospital recorded her age to be 17 years, and hence, on the date of marriage, her age was 18 years.
Further, the applicant referred to various articles and also submitted that the girl had attained puberty when her stepfather impregnated her at least 9 months before she gave birth to her first child.
The Court took note of various precedents wherein Islamic marriages had been upheld for girls even if they were under 18, but 15+, as the same is valid under Shariat. However, marriages had also been declared void in cases where either puberty or 15 years of age is not established. Further, the Court also mentioned that the position of law is clear, according to which Muslim personal law cannot override POCSO and/or Bharatiya Nyaya Sanhita, 2023 (BNS).
While giving reasons for granting bail, the Court firstly stated that even if it were assumed that the marriage was invalid, it could not be denied that the relationship was not only consensual but also similar to a live-in relationship, to which they were entitled having reached the age of majority. The second reason given by the Court was that since the prevalent Islamic law permits marriage, it would also be valid under the personal law of the couple. Lastly, the Court mentioned that the applicant was misled and, in good faith, he believed the marriage to be in accordance with the age of consent.
Further, taking note of the delayed FIR and the recorded statements, the Court stated that the girl had already married the applicant before leaving her house, and that the stepfather, to ‘arm-twist’ and exert pressure on the girl, manipulated the date on which the girl fled. It was also apparent that, although it was claimed that the girl’s mother had filed the complaint, the FIR bore the signature of the stepfather.
The Court stated that, prima facie, the girl’s claim regarding her age was believable, as she had already given birth to a child before getting married, and she also appeared biologically more mature than her alleged age. The Court further said that the girl’s age was a disputed fact that could only be determined through a full-fledged trial. The Court also took note of an affidavit filed by the girl, stating that she had no objections to the grant of bail for the applicant.
Furthermore, the Court stated that the applicant’s fundamental rights were grossly violated during and after his arrest, as he was produced before the Special Judge well beyond the statutory period of 24 hours, and he was not provided with the written grounds of his arrest, among other violations of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Considering the entirety of the case, the Court ordered that the applicant be released on regular bail, subject to conditions imposed by the Trial Court. Lastly, the Court stated that the conflict between Islamic law and Indian criminal law presents a stark dilemma regarding whether society should be penalized for adhering to long-standing personal laws.
While questioning the adoption of a Uniform Civil Code, the Court observed that this conflict warrants legislative clarity, and that the Legislature must decide whether to continue criminalizing entire communities or to promote peace and harmony through legal certainty. Lastly, Justice Arun Monga urged the Legislature to provide a lasting solution.
Appearances:
For Petitioner – Adv Furkan Ali Mirza, Adv Asim Kirmani, Adv Haris Ahmad, Adv Abdul Wasih
For Respondent – APP Sanjeev Sabharwal, Sr Adv Nandita Rao, Adv Amit Peswani
[1] Section 137(2), Bharatiya Nyaya Sanhita, 2023
[2] Section 64, Bharatiya Nyaya Sanhita, 2023
