The Delhi High Court has held that a marriage recognised under Muslim personal law cannot confer immunity from prosecution under the Protection of Children from Sexual Offences Act (POCSO) or the Bharatiya Nyaya Sanhita (BNS) for sexual intercourse with a wife who was below 18 years of age at the relevant time.

Justice Sanjeev Narula made the observation while refusing to quash an FIR registered against a man under Section 64(1) of the BNS and Section 6 of POCSO, after authorities discovered that his wife was a minor during a pregnancy-related hospital visit.

The girl was 16 years and three months old when she married the petitioner, who was nearly 28 at the time. The couple subsequently lived together and the girl became pregnant. She consistently maintained before the police and the Court that the marriage had taken place with the consent of both families and that she had voluntarily married the petitioner. She also stated that she had not been subjected to force or coercion.

The couple approached the High Court seeking quashing of the FIR, contending that under Muslim personal law, a Muslim girl who has attained puberty is competent to marry. They argued that since the marriage was valid, the subsequent consensual sexual relationship could not attract criminal liability.

Rejecting this argument, the Court drew a distinction between the civil consequences of a marriage and the criminal consequences of conduct falling within the scope of a penal statute.

“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,” it observed.

The Court noted that POCSO Act defines a child as a person below 18 years and criminalises penetrative sexual assault upon a child, irrespective of the child's consent. Section 42-A of POCSO Act also gives the legislation overriding effect in case of inconsistency with other laws.

The Court further pointed out that Section 63 of the BNS treats sexual intercourse with a woman below 18 as rape, irrespective of consent. The marital exception under the BNS is available only where the wife is not below 18.

“The Court cannot therefore substitute 'puberty' for the age of eighteen fixed by POCSO and the BNS,” it said.

It stressed that an age threshold under a child-protection statute is intended to operate as a bright-line rule and cannot depend upon a judicial assessment of whether an individual child was mature enough to understand the relationship.

The Court also considered the girl's repeated assertion that she had voluntarily married the petitioner and did not consider herself wronged. However, it held that while her views must be heard and given due weight in matters concerning her welfare, they cannot alter the ingredients of an offence under POCSO.

“There is a difference between respecting her present wishes and treating those wishes as a private power to waive a public penal statute,” the Court observed.

The Court also distinguished its earlier decision in Harmeet Singh v. State of GNCTD, where proceedings had been quashed in exceptional circumstances. It noted that Harmeet Singh itself did not hold that a minor's consent renders sexual intercourse lawful and had emphasised that such quashing could not become routine.

In the present case, the Court noted the significant age difference between the parties and the fact that the girl was 16 years and three months old at the time of marriage.

“Marriage does not advance a child's age,” the Court remarked, holding that a person who is 16 before the ceremony remains 16 afterwards for the purposes of POCSO Act and Section 63 of the BNS.

The Court further held that the FIR could not be treated as unauthorised merely because neither the girl nor her family had approached the police. Once hospital authorities became aware that a pregnant patient was below 18, the statutory reporting mechanism under POCSO was attracted.

As such, the Court declined to quash the FIR.

Appearance: Mr. Avnish Singh, Mr. Mahendra Vikram Singh and Mr. Suraj Sharma, Advocates with P-1 (in-Person); Mr. Rahul Tyagi, ASC (Crl.) with Mr. Sangeet Sibou, Ms. Priya Rai, Ms. Neha Ghugtyal, Mr. Ajay Jangra, Mr. Avinash Kumar Singh and Mr. Priyansh Raj Singh, Advocates for State. SI Yamini Vats, P.S. Daryaganj with Complainant (in-Person).