There is no such immunity from criminal liability that can be provided through any marriage as per Muslim personal law regarding the creation of physical relations with the minor wife, according to the ruling by the Delhi High Court.
Justice Sanjeev Narula passed this judgment on September 23 but denied the petition to quash the criminal case against the accused, who committed sexual abuse on his minor wife.
In the couple’s marriage, the age of the minor wife was 16 years and three months, while the age of the husband was 28 years.
Petitioners claimed that, under Muslim Personal Law, a person who reaches puberty is competent to contract marriage, and puberty is presumed, absent contrary proof, when the person turns 15 years old.
Accordingly, petitioners claimed that since the girl attained puberty before performing the nikah ceremony, the marriage is valid, and any sexual intercourse thereafter cannot amount to a criminal act.
However, the court refused to accept this defense. "If the court were to quash the FIR only on the ground that the couple claims themselves to be married and petitioner no. 2 (the girl) stands behind petitioner no. 1 (the man), then such an exercise would amount to the creation of an exception to the POCSO Act in respect of certain children, which was not done by Parliament," Justice Narula said.
The court gave reasons for why acceptance of the case made by the petitioners would render the whole statute structure, meant to be used to protect children, void.
"'If the statute protection were to depend not on the age of the child but rather on whether a marriage had been planned prior to discovery of the sexual relations, the legislation would be standing on its head,' said the ruling."
The court concluded with a statement that is simple yet very relevant: marriage does not increase a child’s age, and a 16-year-old person will still be 16 years old after marriage.
This case involved a very important differentiation made by the court between two distinct issues of law.
Here, the court differentiated between the civil validity of the marriage and the criminal act of intercourse with a minor. The court held that while the marriage may have been presumed valid according to Muslim personal law, it does not exempt the person from either the POCSO Act or the Bharatiya Nyaya Sanhita (BNS).
It is very clear from Justice Narula's judgment that age 18, prescribed in POCSO and the BNS, cannot be substituted by puberty under personal law.
The judgement notes that the case had other very serious considerations apart from the central issue of law.
As per the judgement, the girl conceived and the fetus died in the womb, with the girl giving birth to a dead child on June 6, 2026. An exhumation order was issued in respect of the body of the deceased to conduct DNA profiling and evidence collection by the Sub-Divisional Magistrate.
Furthermore, the girl had assisted the man in obtaining bail, saying she wanted him with her, an aspect that was noted in court but did not play any significant role due to statutory protection required.
This is not the first instance in which Indian courts have faced the issue of the conflict between personal laws, child marriages, and POCSO, and decisions rendered in such cases have not been uniform.
In another case, the Delhi High Court had quashed POCSO charges against a 19-year-old in relation to a sexual relationship with his 17-year-old wife based on "humanitarian reasons" considering the birth of a child from this union and the fact that they were neighbors and freely chose each other as spouses.
In addition, the Punjab and Haryana High Court referred to the previous decision of the Delhi High Court according to which an FIR filed in regard to rape had been quashed as the girl had a right to annul her marriage before reaching the age of 18 and not be prosecuted for her husband.
What separates this latest decision from previous, relatively lenient decisions is the fact that personal law is explicitly not considered an umbrella excuse.
As opposed to considering the specific conditions under which lenience may be granted in cases dealing with consent among teenagers who are above the age of majority, Justice Narula's decision sets out an overall general principle: the idea of puberty in personal law does not take precedence over the statutory age limit of 18 as set out in the POCSO Act, irrespective of the circumstances of the relationship between the parties concerned.
The court did recognize that in some cases there can be “affectio[n]” between the parties, but it clearly stipulated that such circumstances should not overrule the legal protections extended to minors.
