Delhi High Court grants bail in a child marriage case, stating ‘Muslim Personal Law Cannot Override POCSO Act,’ emphasizing protection of minors and the supremacy of national child protection laws.
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NEW DELHI: In a recent case, the High Court dealt with a sensitive and complex issue where personal laws, statutory protections for children, and constitutional principles intersected. The matter arose from the bail application of a Muslim man booked under Sections 363 and 376 of the IPC and Section 6 of the POCSO Act, on allegations of marrying a minor girl who had previously been a victim of sexual assault by her stepfather.
Background
The prosecutrix, at just 14 years old, gave birth to her first child, tragically, as a result of heinous sexual assault committed by her stepfather. The infant was later given up for adoption. Subsequently, the applicant accepted her as his lawful wife, and the couple lived together.
The stepfather, who is himself in judicial custody facing trial under Sections 376(2)(n) IPC and 6 POCSO, later lodged an FIR against the applicant-husband. Consequently, the applicant was arrested and has been under incarceration for more than 11 months as an under-trial.
Interestingly, the prosecutrix herself supported the bail application for her husband. While the prosecution alleged that she was 15–16 years old at the time of marriage, the couple claimed she was already 20 years old, and the applicant was 24.
High Court’s Observations
The bail plea came before Justice Arun Monga, who highlighted that the issue of precocious puberty, the validity of an Islamic marriage, or the question of age of consent cannot be conclusively adjudicated at the stage of bail proceedings.
The Bench stated:
“Be that as it may, whether it is a case of precocious puberty or genuinely prosecutrix was of age of consent or it is a case of valid Islamic marriage, cannot possibly be adjudicated in bail proceedings herein. Position of law clearly is that Muslim personal law cannot override POCSO Act and/or BNS.”
The Court emphasized that while the Supreme Court in K. Dhandapani v. State of Tamil Nadu took a pragmatic approach on peculiar facts, it had barred that case from being used as a precedent.
Reasoning Behind Bail:
- Consensual Relationship: The Court noted that the relationship between the applicant and the prosecutrix was consensual, and their current ages (24 and 20) entitled them to live together akin to live-in partners.
- Bona Fide Belief: The applicant genuinely believed that the prosecutrix was of majority age, considering her motherhood at 14 and physical maturity.
- Violation of BNSS: The Bench highlighted procedural lapses under Section 48 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which bolstered the case for granting bail.
- Long Incarceration: The applicant had already spent nearly a year in custody as an under-trial.
Accordingly, the Court ordered his release on bail.
While deciding on bail, the Court raised profound societal and legal dilemmas:
- Child Marriage and Personal Laws: Islamic law recognizes puberty as a valid marker for marriage in some interpretations, while statutory law—POCSO and Prohibition of Child Marriage Act—criminalizes marriage below 18 years.
- Conflict Between Personal Law and National Statutes: The judgment underlined that personal law cannot override special legislations like the POCSO Act and BNSS.
- Uniform Civil Code (UCC): In a striking observation, Justice Monga asked:
“This raises a stark dilemma viz. should society be criminalized for adhering to long-standing personal laws? Is it not the time to move towards a Uniform Civil Code (UCC), ensuring a single framework where personal or customary law does not override national legislation?”
Appearance:
Petitioner: Advocates Furkan Ali Mirza, Asim Kirmani, Haris Ahmad, Abdul Wasih
Respondent: APP Sanjeev Sabharwal, Senior Advocate (Amicus Curiae) Nandita Rao, Advocate Amit Peswani, ASI Rakesh, Professor Faizan Mustafa, Dr. Mohd. Khalid Khan, Assistant Professor of Law Nehal Ahmed
Case Title:
HAMID RAZA versus STATE OF NCT OF DELHI
BAIL APPLN. 2867/2025
Read Judgment:
