Delhi High Court says marriage cannot shield sex with a minor from POCSO charges

The Delhi High Court has held that a marriage recognised under Muslim personal law cannot prevent prosecution under the Protection of Children from Sexual Offences Act when the wife was below 18 at the time of sexual intercourse. Justice Sanjeev Narula delivered the judgment on September 23 while dismissing a petition seeking to quash a First Information Report registered against a man under the Bharatiya Nyaya Sanhita and the POCSO Act. The case involved a woman who was 16 years and three months old when she married the petitioner, who was nearly 28, on December 20, 2024.

The couple later lived together and she became pregnant. Her age came to light when she visited a government hospital during the pregnancy. The woman told authorities that the marriage had been voluntary and had taken place with the consent of both families.

She also supported the petitioner’s bail plea. The petitioners argued that, under Muslim personal law, a Muslim girl who had reached puberty was competent to marry and that the subsequent sexual relationship could not therefore attract criminal liability. The court rejected that argument.

It said personal law could determine whether a marriage had been contracted, but could not create an exception to a criminal law where Parliament had provided none. Marriage could affect status, maintenance, legitimacy, residence and rights between the parties, but did not necessarily immunise conduct separately prohibited by a secular penal law. The judgment noted that POCSO defines a child as a person below 18 and treats penetrative sexual assault against a child as an offence.

The court said a child’s consent does not remove the conduct from that provision. It also cited the BNS provision treating intercourse with a woman below 18 as rape irrespective of consent, with the marital exception unavailable where the wife is under 18. The court further referred to the Prohibition of Child Marriage Act, which defines a female below 18 as a child and provides penal consequences for an adult male contracting such a marriage.