"Marriage does not advance child’s age; personal law cannot override POCSO": Delhi HC

New Delhi [India], September 26 : The Delhi High Court has observed that marriage does not advance a child’s age and a marriage claimed to be valid under Muslim personal law cannot provide immunity from prosecution under the Protection of Children from Sexual Offences (POCSO) Act or the Bharatiya Nyaya Sanhita (BNS) for sexual intercourse with a wife below 18 years of age.
Justice Sanjeev Narula, while refusing to quash an FIR against a man who married a girl when she was 16 years and three months old, observed, “Put simply, marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards.”
The Court said that for the purposes of POCSO and Section 63 of the BNS, the age of the girl is determinative of her legal capacity to consent to a sexual act. It held that personal law cannot be used to create an exception which Parliament has expressly excluded.
The High Court further observed that a marriage ceremony does not move a child into a lesser category of protection under criminal law. It noted that POCSO defines every person below 18 as a child and that the BNS treats sexual intercourse with a woman below 18 as rape irrespective of her consent. The marital exception under the BNS is available only where the wife is not below 18.
The Court said it could not substitute “puberty” for the age of 18 prescribed under POCSO and the BNS, nor could the statutory threshold be redrawn on a case-to-case assessment of whether a 16-year-old appeared mature enough to understand the relationship.
Justice Narula observed that while the views of an adolescent must be heard and given due weight in matters concerning custody, residence, protection, rehabilitation and bail, such views cannot alter the ingredients of an offence or create a defence that POCSO and the BNS do not recognise.
The Court was dealing with a petition filed by Bilal and another seeking quashing of FIR No. 189/2026 registered at Darya Ganj Police Station under Section 64(1) of the BNS and Section 6 of the POCSO Act. They had also sought disciplinary proceedings against police officials and compensation for alleged false implication and harassment.
According to the judgment, the girl was born on September 19, 2008, and married Bilal on December 20, 2024, when she was 16 years and three months old. Bilal, born on January 1, 1997, was then nearly 28. The couple thereafter lived together and by May 2026, the girl was around eight months pregnant. Her age came to the notice of authorities when she visited a government hospital for treatment during her pregnancy.
The Court noted that the FIR did not arise from any accusation by the girl. She consistently maintained that the marriage had taken place with the consent of both families, that she had married of her own free will and that physical relations commenced after the marriage. She also supported Bilal during his bail proceedings and told the court that she wanted him by her side.
The judgment records that the foetus subsequently died in utero and the girl delivered a stillborn child on June 6, 2026. An order was later obtained from the Sub-Divisional Magistrate for exhumation of the child for DNA profiling and collection of evidence.
The petitioners argued that under Muslim personal law, a Muslim of sound mind who has attained puberty is competent to marry and that puberty is presumed, in the absence of evidence, upon completion of 15 years. They contended that since the girl had attained puberty before the nikah, the marriage was valid and the subsequent physical relationship could not attract criminal liability.
Rejecting the argument, the High Court drew a distinction between the validity of the marriage under personal law and criminal liability arising from sexual intercourse with a minor.
“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,” the Court observed.
It added that the legal status of a relationship and the criminal character of an act committed within it are separate questions.
The Court clarified that it was not deciding whether the nikah was valid, void or voidable. Even if the marriage were assumed to be valid in favour of the petitioners, the question of sexual intercourse with a minor would still be governed by POCSO and the BNS.
Dealing with the girl’s consistent stand that there was no force or coercion, the Court observed that the absence of force does not mean absence of an offence under POCSO when the sexual act involves a child below 18.
It further held that consent of the two families could not enlarge the statutory capacity of a child to consent to sexual intercourse. While the girl’s wishes deserved respect, the Court said there was a distinction between respecting her present wishes and treating those wishes as a private power to waive a penal statute. “POCSO does not confer such a power upon the child, her parents, or the Court,” it observed.
The Court also noted that the present case did not involve two adolescents separated by a marginal age difference. At the time of the nikah, the girl was 16 years and three months old while the man was nearly 28. It clarified that the age difference by itself did not establish guilt, but was relevant while considering the exceptional power to terminate a POCSO prosecution at its inception.
The High Court further rejected the argument that registration of the FIR was unjustified because neither the girl nor her family had complained to the police. It noted that POCSO does not make prosecution dependent upon a complaint from the child or her parents and imposes a statutory obligation to report an apprehended or committed offence.
Once doctors learnt that a pregnant patient was below 18, the statutory reporting mechanism was attracted, the Court said. It added that whether the prosecution ultimately proves every ingredient of the alleged offence would be a matter for investigation and trial.
The Court also observed that constitutional freedoms under Articles 21, 25 and 26 could not provide immunity from a generally applicable penal law enacted for the protection of children. “Constitutional liberty protects choice; it does not create an exception to POCSO or the BNS,” the judgment said.
Dismissing the plea for quashing, the High Court held that a marriage claimed to be valid under Muslim personal law cannot, merely because of that status, confer immunity from POCSO or the BNS for sexual intercourse with a wife who was below 18 at the relevant time.
The Court cautioned that the POCSO framework would be substantially weakened if an adult could answer a prosecution involving a girl below 18 merely by producing a marriage ceremony recognised under personal law. Such an interpretation, it said, would make statutory protection depend on whether a marriage had been arranged before the sexual relationship came to light and “would turn the legislation on its head.”
The Court acknowledged that individual cases may involve “affection rather than violence, and relationships rather than predation”, but said this was precisely why Parliament had prescribed an objective age threshold rather than making criminal liability dependent upon subjective intention. Courts could account for individual circumstances at appropriate stages through legally available discretion, but could not redraw the offence itself.
While dismissing the petition, the Court also declined the prayers seeking disciplinary proceedings against police officials and compensation.