Muslim personal law cannot override law protecting children: Delhi High Court

The court highlighted that the freedom to choose a partner is an important facet of personal liberty, and the Constitution protects the freedom to profess and practice religion. “Neither freedom, however, gives an adult a right to claim immunity from a generally applicable penal law enacted to protect children. Constitutional liberty protects choice; it does not create an exception to POCSO or the BNS,” the order observed.

The ruling pointed out that the POCSO leaves little room for ambiguity. It explained that Section 2(1)(d) defines a “child” as any person below eighteen. Section 3 makes penetrative sexual assault upon a child an offence; the child’s consent does not take the act outside that provision.

It added that the same legislative choice now appears directly in the BNS. “Section 63 treats sexual intercourse with a woman below eighteen as rape, with or without her consent,” it said.

Minor wife, police booked husband under POCSO

The case centers around a Muslim couple, a man and his 16-year-old wife. Born in September 2008, the young woman married a nearly 28-year-old man in December 2024 with the consent of both their families. Both parties consistently stated that the marriage and their physical relationship were completely voluntary.

Justice Sanjeev Narula said that the POCSO leaves little room for ambiguity.

In May this year, when she was around eight months pregnant, she visited a government hospital for treatment. Hospital authorities checked her age, found her to be under 18 based on school records, and alerted the police.

The police then registered an FIR against the husband under the provisions of the POCSO Act. Shortly after, in June, the fetus tragically died, and she delivered a stillborn child.

The couple together approached the high court seeking to quash the FIR. They argued that under Muslim personal law, a person who has attained puberty is legally competent to contract marriage, and therefore, their consensual marital relationship should be immune from criminal charges.

Appearing for the petitioners, advocate Avnish Singh, along with Mahendra Vikram Singh and Suraj Sharm, relied upon the Muslim Personal Law (Shariat) Application Act, 1937, and upon the principle stated in Mulla’s Principles of Mahomedan Law that a Muslim of sound mind who has attained puberty is competent to contract marriage, puberty being presumed, in the absence of evidence, upon completion of fifteen years.

Consent cannot override POCSO protection: Order

Raising a concern over the legal character and consequences of a nikah solemnised by a Muslim girl who has attained puberty but is still below 18, and questioning whether that nikah, by itself, places subsequent sexual intercourse beyond the reach of POCSO and BNS, the order held, “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.”

Empathising with the situation the couple had been going through, the court said that the grief suffered by the petitioners following the loss of the child cannot be understated, but sympathy for that loss cannot retrospectively render the registration of a cognisable offence unlawful.

Noting that the girl says that she chose the marriage, continues to stand by the husband, and does not regard herself as having been wronged by him, the order said that her opinion deserves to be heard with seriousness and dignity, but the question is whether her consent, given when she was below eighteen, and the nikah said to have preceded the sexual relationship, take the case outside POCSO and the BNS. It answered that they do not.

Highlighting that this case lies at the intersection of personal choice and the protective mandate of the law, the court clarified that, at the time of the marriage, she was just over sixteen years of age and, being below eighteen, remained a child in the eyes of the law. “The fact brings into play a statutory regime whose concern is not merely with the voluntariness of a relationship, but with the protection of children from sexual exploitation and the consequences of child marriage,” the court added.