Delhi High Court rejects marital exception for sex with minor under POCSO

The Delhi High Court has held that a marriage claimed to be valid under Muslim personal law does not protect an adult from criminal prosecution for sexual relations with a wife who was below 18, according to an order by Justice Sanjeev Narula. The court refused to quash a case against a 28-year-old man accused of sexually assaulting his minor wife. The couple married when the girl was 16 years and three months old, subsequently lived together and she became pregnant.

Her age came to light when she attended a government hospital during the pregnancy. She later delivered a stillborn baby in June. Hospital authorities reported the matter to police, leading to a case under India’s Protection of Children from Sexual Offences Act, or POCSO.

The girl said the marriage had taken place with the consent of both families and that she had not been forced or coerced. She also supported the man’s bail application and sought his presence during her pregnancy. The couple argued that, under Muslim personal law, a Muslim girl who had reached puberty could marry and that the marriage removed criminal liability for their sexual relationship.

The High Court rejected that argument. It said allowing an adult to rely on a marriage certificate in a case involving a child would weaken the statutory protection provided by POCSO. The court distinguished between the civil validity of a marriage and the criminal consequences of sexual intercourse with someone under 18.

Justice Narula said the girl’s account should be heard seriously and with dignity, and the court could proceed on the basis that the relationship was voluntary. But, the order said, consent given while she was below 18 and the claimed nikah did not take the case outside POCSO or the Bharatiya Nyaya Sanhita. The court said a marriage does not change a child’s age and that creating a marital exception would amount to introducing an exemption Parliament had not provided.