A marriage valid under personal law cannot shield a man from prosecution under the child-protection statute for sexual intercourse with a wife below 18, the Delhi High Court has held, refusing to quash an FIR even though the girl said she married of her own free will.
New Delhi: 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 Act, 2012 (POCSO) or the Bharatiya Nyaya Sanhita (BNS) for sexual intercourse with a wife who was below 18 at the relevant time, and refused to quash the FIR [Petitioners v. State (NCT of Delhi) and Others].
Justice Sanjeev Narula declined to quash the FIR registered under Section 64(1) of the BNS and Section 6 of POCSO, after hospital authorities found during a pregnancy-related visit that the wife was a minor. The allegations are yet to be tested at trial.
Background of the case
The girl was 16 years and three months old when she married the petitioner, who was nearly 28. The couple lived together and she became pregnant. She has consistently told the police and the Court that the marriage took place with the consent of both families, that she married voluntarily, and that she was not subjected to force or coercion. The couple approached the High Court to quash the FIR, contending that under Muslim personal law a girl who has attained puberty is competent to marry, so that the marriage was valid and the later consensual relationship could not attract criminal liability.
Personal law and criminal law
The Court rejected the argument by distinguishing the civil consequences of a marriage from the criminal consequences of conduct covered by a penal statute. It held that personal law may decide whether a marriage has been contracted and its civil effects, but cannot create an exception to a criminal law where Parliament has provided none. The POCSO Act defines a child as a person below 18 and criminalises penetrative sexual assault on a child irrespective of the child’s consent, and its Section 42-A gives it overriding effect over inconsistent laws.
The Court also pointed out that Section 63 of the BNS treats sexual intercourse with a woman below 18 as rape irrespective of consent, and that the marital exception is available only where the wife is not below 18. It said the Court cannot substitute puberty for the age of eighteen fixed by POCSO and the BNS, and that an age threshold in a child-protection statute is a bright-line rule, which does not depend on a judicial assessment of whether an individual child was mature enough to understand the relationship. It added:
“Marriage does not advance a child’s age.”
So a person who is 16 before the ceremony remains 16 afterwards for the purposes of POCSO and Section 63 of the BNS, the Court held.
The girl’s wishes and the FIR
The Court considered the girl’s repeated statement that she married voluntarily and does not consider herself wronged. It held that while her views must be heard and given due weight in matters concerning her welfare, they cannot alter the ingredients of an offence under POCSO, and that her present wishes cannot be treated as a private power to waive a public penal statute.
It distinguished its earlier decision in Harmeet Singh v. State of GNCTD, in which proceedings were quashed in exceptional circumstances, noting that the decision did not hold that a minor’s consent makes sexual intercourse lawful and stressed that such quashing cannot become routine. Here, it noted the significant age difference between the parties and that the girl was 16 years and three months old at the time of marriage.
The Court further held that the FIR could not be treated as unauthorised merely because neither the girl nor her family approached the police. Once hospital authorities learned that a pregnant patient was below 18, the statutory reporting mechanism under POCSO was attracted. It declined to quash the FIR.
Case Title: Petitioners v. State (NCT of Delhi) and Others
Case Number: W.P.(CRL) No. 2976 of 2026
Bench: Justice Sanjeev Narula, Delhi High Court
Appearance: Advocates Avnish Singh, Mahendra Vikram Singh and Suraj Sharma for the petitioners; Rahul Tyagi, Additional Standing Counsel (Criminal), with Sangeet Sibou, Priya Rai, Neha Ghugtyal, Ajay Jangra, Avinash Kumar Singh and Priyansh Raj Singh, Advocates, for the State
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