A marriage under Islamic law, based on attaining puberty, may be considered valid even if contracting parties are under 18, challenging statutory provisions on age of consent.

JUDGMENT

1. Barely 14 years child herself, when the mother in her was born as the prosecutrix bore her first child, forced by the heinous sexual assault of her stepfather, her supposed protector turned predator. Later the infant was given in adoption. Shattered, she found solace and dignity when the applicant herein accepted her as his lawful bride. Both got married on 04.06.2024 under Islamic law. The couple is now also blessed with another child born from their wedlock. Stepfather is in judicial custody and facing trial in FIR No. 513/2024 dated 13.08.2024 under Sections 376 (2)(n) of IPC & 6 of POCSO Act.

2. In this backdrop, the stepfather of prosecutrix had earlier lodged an FIR against the applicant herein i.e. F.I.R. No. 390/2024 dated 15.06.2024 under Sections 363 registered at P.S. Khyala. Subsequently, Section 376 of IPC and 6 of POCSO Act was added in the chargesheet. The applicant was arrested on 06.10.2024, whereas the prosecutrix herself beseeches bail for him (her husband/the applicant). Applicant before this court, has thus been under incarceration for over 11 months, as an under-trial/accused. His alleged crime being that he married a minor. Husband’s age (24 years) is not disputed. Prosecutrix claims herself to be 20 years, whereas prosecution case is that even as on today she is a minor being 15-16 years old. More of it in greater details, at appropriate stage.

3. Case as per the charge-sheet, in verbatim, reproduced hereinbelow is under :

“Brief facts of the present case are that on date 15.06.2024 during Emergency duty, on receiving DD No 40A, ASI Subhash Chand No.2880-D along with HC Vikram No. 1683/W reached the spot ******* Ravi Nagar khayala where complainant K M***** w/o S*** M****age: 38 years met ASI Subhash, whose statement was recorded which is as follows: "Statement of K M***** W/o S*** M**** R/o ************ Ravi Nagar Khyala, Delhi Age 38 Yrs. Mob No 97******7 Stated that I live at the above address with my family on rent. This is my second marriage. From my first husband I have 2 children, one boy and one girl. For quite some time I have been unwell; my husband Shri Mohan took me to Sanjay Gandhi Hospital, Mangol Puri where my treatment is going on. My husband used to come home after every two-three days. On 26-05-24 my husband came home, then my daughter A*****, age 14-15 years, colour-fair, height-5'2", body-medium, hair-black, eyes-black, wearing grey kurti and blue jeans with wide belt of 5 buttons, went from home at 5 AM on 26/05/24 without telling anyone. Since then I am searching but have not found my daughter. I suspect that some unknown person has lured and taken my daughter A*****. Search for my daughter be done." On basis of complainant's statement, present case vide FIR No- 390/2024 U/S 363 IPC was registered.

During investigation complainant produced her daughter victim "A"'s birth certificate which was verified, according to which victim's DOB is 05/02/2011 (13 years 7 months). During investigation ASI Subhash Chand No-2880-D checked CCTV cameras installed near missing girl's house and made lot of efforts to trace victim "A" but no clue of victim "A" was found.

During investigation on date 22.07.2024 ASI Subhash Chand No- 2880-D traced victim "A" at Tis Hazari Court, Delhi. After which medical examination of victim wa