- Delhi HC: Muslim marriage offers no immunity for minor.
- Court rejected quashing plea; man married 16-year-old.
- POCSO, BNS protection of minors overrides personal law.
The Delhi High Court has held that a marriage recognised under Muslim personal law does not grant a man immunity from criminal prosecution for having sexual intercourse with a wife who was below 18 at the time.
Justice Sanjeev Narula made the observation while refusing to quash a criminal case against a man booked under Section 64(1) of the Bharatiya Nyaya Sanhita (BNS) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The Court held that personal law cannot override protections guaranteed under POCSO and the BNS.
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“…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 eighteen at the relevant time. Any other view would create, through judicial decision, an exception which Parliament has expressly excluded,” the Court said.
Woman Was 16, Man Was 28 At Marriage
The case involved a couple who said they had married when the woman was 16 years and three months old and the man was 28. They subsequently lived together, and the woman became pregnant.
Her age came to light when she visited a government hospital during her pregnancy.
The woman told the court that the marriage had taken place voluntarily, with the consent of both families, and that she had not been subjected to force or coercion. She also supported the man’s bail plea and sought his presence during her pregnancy.
The couple had approached the High Court seeking quashing of the criminal case. They also sought action against a police official and compensation for alleged harassment.
Court Rejects Muslim Personal Law Defence
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 subsequent sexual relations could not attract criminal liability.
The High Court, however, distinguished between the civil validity of a marriage and the criminal consequences of sexual intercourse with a minor.
It held that even if the marriage was assumed to be valid under Muslim personal law, it could not create an exception to POCSO or the BNS, Bar and Bench reported.
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 63 of the BNS similarly treats sexual intercourse with a woman below 18 as rape, while limiting the marital exception to a wife who is not under 18.
‘Marriage Does Not Advance A Child’s Age’
The Bench also rejected the argument that the woman’s consent could take the case outside the scope of POCSO.
“Put simply, marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards. For POCSO and Section 63 BNS, that fact is determinative of the legal capacity to consent to the sexual act,” the Court said.
The High Court consequently dismissed the plea seeking quashing of the FIR, along with the requests for disciplinary action against the police and compensation.
Kerala HC Took Similar View
The Delhi High Court’s ruling comes against the backdrop of differing judicial views on the issue.
Earlier this year, the Kerala High Court also held that the validity of a marriage with a minor under Muslim personal law does not provide a defence against prosecution under POCSO.
However, in 2022, another Bench of the Delhi High Court took a contrary view, holding that in the case of a Muslim marriage, physical intercourse between a minor girl and her husband after the marriage may not attract the POCSO Act.
The Punjab and Haryana High Court also held in 2022 that, under Muslim personal law, a Muslim girl above 15 years could enter into a marriage contract with a person of her choice. That ruling, however, did not make observations on the applicability of POCSO in such cases.
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Advocates Avnish Singh, Mahendra Vikram Singh and Suraj Sharma appeared for the petitioners in the present case.
Advocates Rahul Tyagi, Sangeet Sibou, Priya Rai, Neha Ghugtyal, Ajay Jangra, Avinash Kumar Singh and Priyansh Raj Singh represented the State.
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