The Allahabad High Court ruled that a minor wife cannot live with her adult husband, reaffirming that the age of consent is 18 under the Bharatiya Nyaya Sanhita, 2023, and cohabitation may invite POCSO charges.
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UTTAR PRADESH: In a landmark decision reflecting the evolving statutory landscape in India, the Allahabad High Court recently directed the confinement of a minor wife in a Bal Grih (Child Care Home), citing the Bharatiya Nyaya Sanhita (BNS), 2023. The case highlights the legal ramifications of marriage involving minors and underscores the Court’s commitment to child protection in line with the new statutory framework.
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Background of the Case
The matter arose from a Writ Petition seeking the release of a minor wife from the custody of a Rajkeeya Bal Grih. The petitioner claimed that he had married the minor and sought her release.
Key facts as reported:
- The minor, referred to as ‘A’, was allegedly married in 2025.
- According to her High School Marksheet, she was born on October 5, 2008, making her three months shy of 17 at the time of marriage.
- The petitioner, her husband, was taken into custody following a complaint filed under Section 137(2) of the BNS, 2023, by the minor’s father, alleging the marriage constituted a crime.
- The Child Welfare Committee intervened, directing that both parties be lodged in a Bal Grih for their protection.
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Court’s Observations
The Division Bench, comprising Justice JJ Munir and Justice Sanjeev Kumar, emphasized the changes brought by the Bharatiya Nyaya Sanhita, 2023, which came into effect on 1st July 2024, replacing the Indian Penal Code. Notably:
- Section 63(vi) of the BNS now sets the age of consent at 18 years, thereby rendering sexual relations with anyone below this age, even within marriage, statutorily impermissible.
- The Court rejected the petitioner’s reliance on K.P. Thimmappa Gowda vs. State of Karnataka (2011), noting that the age of consent at that time was 16 years, whereas the new statute raises it to 18.
- Arguments based on marital status and prior exceptions to Section 375 IPC were also dismissed, as the Supreme Court in Independent Thought vs. Union of India (2017) had already clarified that the age of consent is to be interpreted as 18 years, regardless of marital status.
The Court concluded that the minor cannot legally reside with her adult husband and directed her to continue staying in the Bal Grih.
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This case illustrates several critical points in Indian jurisprudence:
- Marriage Does Not Override Consent Laws: Even if a minor is married, sexual activity with her is considered unlawful until she attains 18 years.
- Statutory Evolution Matters: Previous case law, such as K.P. Thimmappa Gowda, may no longer hold relevance if statutory provisions have significantly changed.
- Child Protection Priority: Courts prioritize the safety and welfare of minors over personal or marital claims.
Appearances:
Petitioner: Advocate Shakti Shanker Tiwari, Advocate Subhash Chandra Tiwari
Respondent: Government Advocate
Case Title:
Neha and another v. State of U.P. and others
HABEAS CORPUS WRIT PETITION No. – 875 of 2025