Muslim marriage cannot override POCSO law: Delhi High Court

The Delhi High Court has held that a marriage recognised under Muslim personal law cannot confer immunity from prosecution under the Protection of Children from Sexual Offences (POCSO) Act when the wife was below 18 at the time of sexual intercourse.

Justice Sanjeev Narula, in a judgment delivered on September 23, 2026 dismissed a petition seeking quashing of a First Information Report (FIR) registered against a man for rape under the Bharatiya Nyaya Sanhita (BNS) and the POCSO Act, holding that “personal law may determine whether a marriage has been contracted”, but cannot create an exception to a criminal law where Parliament has provided none.

“A marriage may have consequences for status, maintenance, legitimacy, residence and rights between the parties. It does not necessarily immunise conduct that a secular penal statute independently prohibits,” the judge said.

The case concerned a woman who was 16 years and three months old when she married the petitioner, then nearly 28, on December 20, 2024. The couple subsequently lived together and she became pregnant. Her age came to light when she visited a government hospital during the pregnancy.

The woman consistently told the authorities that she had married voluntarily with the consent of both families and had not been subjected to force or coercion. She also supported the petitioner’s bail plea.

The petitioners argued that under Muslim personal law, a Muslim girl who had attained puberty was competent to marry and that the subsequent sexual relationship therefore could not attract criminal liability. The court rejected the contention, holding that POCSO fixes 18 as the age below which consent to sexual activity has no legal efficacy.

“POCSO leaves little room for ambiguity. Section 2(1)(d) defines a ‘child’ as any person below 18 (years). Section 3 makes penetrative sexual assault upon a child an offence; the child’s consent does not take the act outside that provision,” the court said.

The court noted that Section 63 of the BNS treats sexual intercourse with a woman below 18 as rape irrespective of consent, while the marital exception applies only where the wife is not below 18.

“POCSO fixes 18 (years) as the threshold for sexual consent. The BNS fixes the same threshold and expressly withholds the marital exception where the wife is below 18. The Prohibition of Child Marriage Act, 2006 separately defines a female below 18 as a child, and attaches penal consequences to an adult male contracting a child marriage,” the court said.