Justice Sanjeev Narula passed the order on September 26 while hearing a petition filed by the accused seeking quashing of the criminal proceedings.
The case relates to a girl who was 16 years and three months old when she married the accused, who was 28 at the time. The accused claimed that the two were legally married under Muslim personal law and argued that their relationship as husband and wife could not be treated as an offence.
A case had been registered against him under the relevant rape provision of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The High Court, however, declined to accept marriage as a ground for ending the proceedings.
Marriage does not take a child outside POCSO
The central question before the court was whether a marriage recognised under personal law could prevent the application of POCSO when the girl was below 18.
The court held that it could not.
Under the POCSO Act, anyone below the age of 18 is legally considered a child. The law does not create an exception for sexual activity simply because the child is married.
The court also noted that the relevant criminal law provisions treat sexual intercourse with a girl below 18 as rape. Therefore, whether the girl was married to the accused or whether the marriage was otherwise considered valid under personal law does not decide the applicability of POCSO.
In effect, the court drew a clear line between the question of marriage and the question of criminal liability for sexual activity with a child.
Girl was 16 when marriage took place
The accused’s petition stated that the girl was 16 years and three months old when the marriage took place. He was 28.
The girl told the court that the marriage had taken place voluntarily and with the consent of both families. She also supported the accused’s bail plea and sought permission for him to stay with her during her pregnancy.
Her age reportedly came to light after she became pregnant and underwent a medical examination at a government hospital.
The accused relied on Muslim personal law to argue that a Muslim girl who has attained puberty can marry. On that basis, he contended that sexual relations between spouses in such a marriage should not attract criminal liability.
The High Court did not accept that argument as a ground for quashing the POCSO proceedings.
Personal law cannot override POCSO protection
The ruling is significant because it deals with the conflict raised between personal-law rules on marriage and the statutory protection provided to children under POCSO.
The court’s reasoning was that the POCSO Act applies on the basis of the child’s age. Once a person is below 18, the statutory protection applies irrespective of marital status.
This means that a claim that a minor marriage is valid under a particular personal-law framework does not, by itself, provide protection from prosecution under POCSO.
Similar cases have reached different courts
The question has previously reached several High Courts, particularly in cases involving Muslim personal law and marriages involving girls below 18.
The Kerala High Court has also considered the issue this year and adopted a similar approach on the applicability of POCSO.
At the same time, a Delhi High Court bench in 2022 had taken a different view on the applicability of POCSO in a case involving a minor married under Muslim personal law.
The Punjab and Haryana High Court also examined the issue in 2022, including questions concerning the capacity of a Muslim girl above 15 to enter into marriage under Muslim personal law.
The Delhi High Court’s latest order therefore adds to an ongoing body of judicial consideration over the relationship between personal law, minor marriage and the statutory protections available to children under POCSO.
