No Muslim personal law immunity from POCSO case for sex with minor wife: Delhi High Court

The Delhi High Court has held that a marriage recognised under Muslim personal law does not confer a man entering such a marriage immunity from criminal prosecution for having sexual intercourse with a wife under 18 years [Bilal & Anr v The State Govt of NCT of Delhi through SHO & Ors]. 

Justice Sanjeev Narula ruled that personal law cannot override the protections guaranteed under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Bharatiya Nyaya Sanhita, 2023 (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. Any other view would create, through judicial decision, an exception which Parliament has expressly excluded,” the Court held. 

The Court made the observation while refusing to quash an criminal case registered against a man under Section 64(1) of the BNS and Section 6 of the POCSO Act.

The man and his wife filed the plea had filed the plea, in which they also sought action against a police official and compensation for harassment.

It was stated that they married when the woman was 16 years and three months old, and the man was 28.  They subsequently lived together, and the woman became pregnant. Her age came to light when she visited a government hospital during her pregnancy.

The woman maintained that the marriage had taken place voluntarily, with the consent of both families, and that she had not been subjected to force or coercion. She also supported the man's bail application and sought his presence during her pregnancy.

In their plea, the couple argued that under Muslim personal law, a Muslim girl who had attained puberty was competent to marry and that the validity of the marriage meant that the subsequent sexual relationship could not attract criminal liability.

However, the High Court drew a distinction between the civil validity of a marriage and the criminal consequences of sexual intercourse with a minor.

It held that even if the marriage was assumed to be valid under Muslim personal law, that could not create an exception to POCSO or the BNS. 

The Court noted that POCSO defines a child as a person below 18 and criminalises penetrative sexual assault against a child irrespective of consent. Section 63 of the BNS similarly treats sexual intercourse with a woman below 18 as rape, while limiting the marital exception to a wife who is not under 18.

The Bench also rejected the argument that the woman's consent could take the case outside POCSO.

“Put simply, marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards. For POCSO and Section 63 BNS, that fact is determinative of the legal capacity to consent to the sexual act,”it said. 

Therefore, the Court dismissed the plea to quash the FIR, along with the prayers for disciplinary action against the police and compensation.

A similar view, that the validity of a marriage with a minor under Muslim law is no shield to prosecution under the POCSO Act, was taken by the Kerala High Court as well earlier this year.

In 2022, however, another Bench of the Delhi High Court took a contrary view, holding that in the case of a Muslim marriage, physical intercourse between a minor girl and her husband after the wedlock may not attract the POCSO Act.

A related view was also taken by the Punjab and Haryana High Court in 2022, when the High Court held that, as per Muslim personal law, a Muslim girl over the age of 15 years is competent to enter into a contract of marriage with the person of her choice. In this ruling, however, no observations were made about the applicability of the POCSO Act in such cases.

Advocates Avnish Singh, Mahendra Vikram Singh and Suraj Sharma appeared for the petitioners in the present case. 

Advocates Rahul Tyagi with advocates Sangeet Sibou, Priya Rai, Neha Ghugtyal, Ajay Jangra, Avinash Kumar Singh and Priyansh Raj Singh represented the State. 

[Read Order]