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Muslim Marriage No Defence To POCSO For Sex With Minor Wife:
A Question of Consent vs. Statutory Age
The has firmly ruled that a marriage recognized under Muslim personal law cannot shield an adult from prosecution under the or the for sexual intercourse with a wife who was below 18 at the time. Justice Sanjeev Narula, presiding over a single bench, dismissed a petition seeking of an FIR registered against a man who married a 16-year-old girl.
The Facts: A Marriage at Sixteen
The case involved Petitioner No. 1, Bilal, who married Petitioner No. 2 on when she was 16 years and 3 months old. Petitioner No. 1 was nearly 28. The couple lived together and the girl became pregnant. When she visited a government hospital, her age came to light, leading to the registration of FIR No. 189/2026 under and . Throughout the proceedings, the girl maintained that the marriage was consensual and that she wanted her husband by her side.
The Petitioners' Argument: Personal Law Overrides
Bilal's counsel argued that under Muslim personal law, a girl who has attained puberty (presumed at 15) is competent to marry. They contended that since the nikah was valid, the subsequent sexual relationship could not attract criminal liability. Reliance was placed on precedents from the , including and , and the Full Bench decision in .
The Court's Response: Separate Questions of Civil and Criminal Law
Justice Narula drew a sharp distinction between the civil validity of a marriage and the criminal character of an act within it.
"Personal law may determine whether a marriage has been contracted and the civil consequences that follow. It cannot supply an exception to a criminal law where Parliament has provided none,"
the court observed. The court noted that POCSO's
under
and BNS's express withholding of the
for wives below 18 left no room for a personal-law-based immunity.
: Why Consent Doesn't Matter
The court emphasized that the age of 18 is a
under both POCSO and BNS.
"The Court cannot therefore substitute 'puberty' for the age of eighteen fixed by POCSO and the BNS,"
it said. The girl's consent was irrelevant because the law deems a child below 18 incapable of giving valid consent to sexual activity. The court rejected the argument that family approval or the girl's wishes could create a private exception to a public penal statute.
Distinguishing : No Routine
The court addressed its earlier decision in , where proceedings were quashed in exceptional circumstances. In that case, the victim was 17, the accused 22, and the State had no objection. Here, the girl was 16, the man 28, and there was no surviving child. Justice Narula clarified that POCSO prosecutions cannot become routine and that each case must be examined on its facts.
Key Observations
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"Marriage does not advance a child's age. A person who is 16 before the ceremony remains 16 afterwards."
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"There is a difference between respecting her present wishes and treating those wishes as a private power to waive a public penal statute."
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"The statutory protection would then depend not upon the age of the child, but upon whether a marriage had been arranged before the sexual relationship was discovered. That would turn the legislation on its head."
Final Decision: FIR Stands, But No Finding on Guilt
The court dismissed the petition for and declined the prayers for disciplinary action and compensation. It clarified that its observations were confined to the prayer and should not influence the trial. The bail granted to Bilal earlier was allowed to continue.
The judgment reinforces the legislative intent that child protection laws apply uniformly, irrespective of personal law or the voluntariness of the relationship.
