Personal laws cannot be a ground to seek exemption from criminal liability under penal statutes, the Delhi high court held as it directed a Muslim man to face trial under the protection of children from sexual offences (Pocso) Act for establishing sexual relations with his underage wife.
The couple approached the high court to quash the FIR, claiming that they had married voluntarily with the consent of their families. The woman also stated that she had neither been forced into the marriage nor subjected to any non-consensual sexual relationship.
The judge made the observation while refusing to quash a first information report (FIR) registered against a Muslim man for rape under Section 64(1) of BNS and Section 6 of the Pocso Act. The woman was little over 16 years of age when she married the man, who was 28, in 2024, according to the plea. A person who is 16 before the ceremony remains 16 afterwards. For POCSO and section 63 BNS, that fact is determinative of the legal capacity to consent to sexual act,” the court held, refusing to quash the criminal case. The court noted that the Pocso framework would be substantially weakened if an adult could answer a prosecution concerning a girl below 18 simply by producing a marriage ceremony recognised by personal law.
A bench of justice Sanjeev Narula held that personal law may determine whether a marriage has been contracted and the civil consequences that follow, but cannot supply an exception to criminal law when Parliament has provided none. Her age came to light when she was eight months pregnant and visited a government hospital in Delhi for treatment, following which the police registered a case against the man. “A marriage does not advance a child’s age.
In the present case, the court said the personal law cannot prevail over the statutory protections accorded to children under the Pocso Act, and the Bharatiya Nyaya Sanhita (BNS).
The case presented a unique situation before the court where the husband and wife sought quashing of the criminal case claiming to be validly married under the Muslim personal law.
