The Delhi High Court has held that a marriage claimed to be valid under Muslim personal law cannot, by itself, provide immunity from prosecution under the Protection of Children from Sexual Offences Act, 2012 (POCSO) or the Bharatiya Nyaya Sanhita, 2023 (BNS), where the wife was below 18 years of age.
Justice Sanjeev Narula dismissed a plea seeking quashing of an FIR registered under Section 64(1) of the BNS and Section 6 of POCSO.
The case involved a couple who married on December 20, 2024, when the woman was 16 years and three months old and the man was nearly 28. They subsequently lived together and the woman became pregnant. Her age came to light when she visited a government hospital during her pregnancy, following which the FIR was registered.
The woman maintained that she had married voluntarily with the consent of both families and did not allege force or coercion.
The petitioners relied on Muslim personal law, arguing that the woman, having attained puberty, was competent to marry and that sexual relations between spouses could not attract criminal liability once the marriage was recognised.
The High Court rejected the contention, holding that personal law cannot create an exception to criminal provisions where Parliament has provided none.
The Court noted that POCSO defines a child as a person below 18 and criminalises penetrative sexual assault against a child irrespective of consent. Section 42-A of POCSO also gives the statute overriding effect in case of inconsistency with other laws.
The Court further noted that Section 63 of the BNS treats sexual intercourse with a woman below 18 as rape irrespective of consent, with the marital exception applying only where the wife is not below 18.
Relying on the Supreme Court’s judgments in Independent Thought v. Union of India and Society for Enlightenment and Voluntary Action v. Union of India, the Court held that marriage does not diminish the protection afforded by penal law to a child below 18.
It also rejected reliance on the woman’s consent, absence of allegations of force and consent of the families, holding that such factors cannot alter the ingredients of an offence under POCSO or create a defence not recognised by the statute.
The Court clarified that it was not deciding the validity of the marriage or the petitioner’s ultimate guilt, but only whether the claimed marriage under Muslim personal law could confer immunity from POCSO or the BNS.
Finding no ground to quash the FIR, the Court dismissed the petition and also declined the prayers seeking disciplinary action against police officials and compensation.
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