A marriage recognised under Muslim personal law cannot shield a man from criminal prosecution under the POCSO Act or the Bharatiya Nyaya Sanhita (BNS) for having sexual relations with a wife below 18, the Delhi High Court has ruled. Justice Sanjeev Narula held that while personal law may determine the validity and civil consequences of a marriage, it cannot create an exception to criminal law where Parliament has expressly provided none.
The court made the observations while refusing to quash a criminal case against a man booked under Section 64(1) of the BNS and Section 6 of the Protection of Children from Sexual Offences Act. 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.
Marriage no exemption
The couple had approached the High Court seeking quashing of the FIR, arguing that their marriage was valid under Muslim personal law. They contended that a Muslim girl who had attained puberty was competent to marry and that sexual relations within such a marriage could consequently not attract criminal liability.
The High Court rejected the argument, drawing a distinction between the civil validity of a marriage and criminal liability arising from sexual relations with a person below 18. Even if the marriage were assumed to be valid under Muslim personal law, the court said, that status could not create an exception to POCSO or the BNS.
“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,” the court observed. It said taking a contrary view would effectively create through judicial interpretation an exception that Parliament had deliberately excluded.
Consent argument rejected
The couple told the court that the marriage had taken place voluntarily with the consent of both families. The woman maintained that she had not been subjected to force or coercion and supported her husband’s position before the court.
The Bench, however, held that the question of consent could not take the case outside the scope of POCSO because the legislation defines a child as any person below 18. Sexual acts covered by the legislation remain offences when committed against a child irrespective of purported consent.
“Marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards,” the court said. It held that for the purposes of POCSO and Section 63 of the BNS, the age of the person determines legal capacity to consent to the sexual act.
The BNS also sets 18 as the relevant threshold and does not extend the marital exception to sexual intercourse where the wife is below that age. The court additionally referred to the Prohibition of Child Marriage Act, 2006, which treats a woman below 18 as a child for the purposes of that legislation.
Pregnancy led to case
According to the case, the couple 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 criminal proceedings were initiated against the man.
The couple sought not only quashing of the criminal case but also action against a police official and compensation for alleged harassment. The High Court rejected those prayers along with their request to quash the FIR.
The court acknowledged the unusual circumstances of the case, including the woman’s support for her husband and the fact that the couple had established a family. It nevertheless held that those circumstances could not override the statutory framework protecting children from sexual offences.
Court stresses child protection
The High Court said accepting marriage as a defence could substantially weaken the POCSO framework. It reasoned that an adult accused of sexual relations with a girl below 18 could otherwise avoid prosecution merely by relying on a marriage ceremony recognised under personal law.
Such an interpretation, the court said, would make the protection available to a child dependent on whether a marriage had taken place before the sexual relationship was discovered rather than on the child’s age. That would run contrary to the purpose of legislation fixing 18 as the age below which a person cannot legally consent to sexual activity.
The ruling also addressed differing judicial approaches to the interaction between personal law and child-protection statutes. The Kerala High Court had earlier this year taken a similar position that the validity of a marriage involving a minor under Muslim personal law could not provide protection from prosecution under POCSO.
A Delhi High Court Bench had taken a different view in a 2022 case concerning sexual relations following a Muslim marriage involving a minor. The latest ruling, however, emphasised the statutory age threshold and held that personal law could not override protections expressly enacted under POCSO and the BNS.