Sexual relations with minor wife an offence under POCSO:Delhi HC says accused cannot escape by citing Muslim personal law protections

The Delhi High Court has refused to quash a rape case against a man accused of sexually assaulting a 16-year-old girl, holding that marriage to a minor cannot shield an accused from criminal proceedings. Justice Sanjeev Narula passed the order on September 26 while hearing a petition filed by the accused seeking quashing of the case. The man had claimed that the girl was his legally wedded wife and that they had married according to Muslim personal law. A case was registered against him under Section 375 of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2012. Court says marriage does not change minor’s legal status The court held that even if the marriage is considered valid under Muslim personal law, it does not create an exception under the POCSO Act or the relevant provisions of the Bharatiya Nyaya Sanhita (BNS). The court said the validity of the marriage or whether the girl was the accused’s wife has no bearing on an offence under the POCSO Act. Under POCSO, anyone below 18 years of age is considered a child, and sexual activity involving a child constitutes an offence irrespective of consent. The relevant provision of the BNS also treats sexual intercourse with a woman below 18 as rape. Girl was 16 when she got married According to the petition, the girl was 16 years and three months old when she married the accused, who was 28 at the time. She said the marriage took place with the consent of both families. Her age came to light after she became pregnant and underwent an examination at a government hospital. The woman told the court that she had married voluntarily and was not under any pressure. She also supported her husband’s bail plea and sought permission for him to stay with her during her pregnancy. The accused argued that under Muslim personal law, a Muslim girl who has attained puberty can marry and that sexual relations between spouses following such a marriage should therefore not constitute an offence. Other high courts have considered similar issues The issue of minor marriage under Muslim personal law and the applicability of POCSO has also come before other high courts. The Kerala High Court adopted a similar view this year. However, a Delhi High Court bench in 2022 had taken a different approach to the applicability of POCSO in cases involving the marriage of a minor under Muslim law. The Punjab and Haryana High Court had also considered the issue in 2022, including the capacity of a girl above 15 to marry under Muslim personal law.