Muslim marriage cannot shield sex with minor wife from prosecution under POCSO: Delhi HC

The Delhi High Court has refused to quash a POCSO case against a man who married a 16-year-old girl, holding that a marriage claimed to be valid under Muslim personal law cannot shield an adult from prosecution for having sexual intercourse with a wife below 18.

The court said such a view would weaken the Protection of Children from Sexual Offences (POCSO) Act and refused to quash an FIR against a man accused of sexually assaulting his minor wife.

Justice Sanjeev Narula said in his September 23 order that the statutory age of 18 under the POCSO Act and the Bharatiya Nyaya Sanhita (BNS) cannot be replaced by the concept of puberty under personal law.

Justice Narula said the law’s protection cannot depend on whether a marriage was arranged before the sexual relationship came to light. “The statutory protection would then depend not upon the age of the child, but upon whether a marriage had been arranged before the sexual relationship was discovered. That would turn the legislation on its head,” the court said.

The court was dealing with a petition seeking the quashing of FIR No. 189/2026 registered at Darya Ganj Police Station under Section 64(1) of the BNS and Section 6 of the POCSO Act.

The case involved a couple who married when the girl was 16 years and three months old and the man was 28. They lived together, and the girl became pregnant. Her age came to light when she went to a government hospital during her pregnancy. She later delivered a stillborn baby in June. After the hospital authorities informed the police, a case was registered against the man under the POCSO Act.

The girl said the marriage had taken place with the consent of both families and that she had not faced any force or coercion. She had earlier supported the man’s bail plea and sought his presence during her pregnancy.

The court said the girl’s consent or the absence of force and coercion could take the case outside POCSO. “POCSO does not confer such a power upon the child, her parents, or the Court,” it observed.

In their plea before the court, the couple argued that under Muslim personal law, a girl who had attained puberty was competent to marry, and so if the marriage was valid, then the subsequent sexual relationship could not lead to criminal liability.

The court rejected the argument, saying a marriage under Muslim personal law does not by itself remove the criminality of sexual relations with a minor. “To quash the FIR merely because the parties describe themselves as married and petitioner no. 2 supports petitioner no. 1 would effectively introduce a marital exception into the POCSO Act for a category of children for whom Parliament has consciously provided none,” it said.

The court added that marriage does not change a child’s age, and drew a distinction between the civil validity of a marriage and the criminal consequences of sexual intercourse with a minor.

The court clarified that it was not deciding whether the nikah was valid, void or voidable.

Justice Narula said that even if the marriage was assumed to be valid under Muslim personal law, it could not create an exception to the POCSO Act or the Bharatiya Nyaya Sanhita. “The conclusion is narrower: a marriage claimed to be valid under Muslim personal law cannot, by reason of that status alone, confer immunity from POCSO or BNS for sexual intercourse with a wife who was below 18 at the relevant time. Any other view would create, through judicial decision, an exception which Parliament has expressly excluded,” the court said.

The HC also rejected the argument that the FIR was unsustainable because neither the girl nor her family had approached the police. In this case, once doctors learnt that the pregnant patient was below 18, the statutory reporting mechanism was triggered, the court said.

The petitioners had also sought disciplinary action against police officials and compensation for alleged false implication and harassment.