Delhi HC says Muslim marriage cannot shield sex with minor wife under POCSO
The Delhi High Court has held that a marriage claimed to be valid under Muslim personal law cannot protect an adult from prosecution under child protection law for having physical relations with a wife who was a minor at the time. Refusing to quash an FIR against a man accused of sexually assaulting his minor wife, the court said such a view would weaken the Protection of Children from Sexual Offences (POCSO) Act.
Justice Sanjeev Narula said in his September 23 order that the law's protection cannot depend on whether a marriage was arranged before the sexual relationship came to light. "The statutory protection would then depend not upon the age of the child, but upon whether a marriage had been arranged before the sexual relationship was discovered. That would turn the legislation on its head," the court said.
The case involved a couple who married when the girl was 16 years and three months old and the man was 28. They later lived together and the girl became pregnant. Her age came to light when she went to a government hospital during her pregnancy. She later delivered a stillborn baby in June. After the hospital authorities informed the police, a case was registered against the man under the POCSO Act.
The girl said the marriage had taken place with the consent of both families and that she had not faced force or coercion. She had earlier supported the man's bail plea and sought his presence during her pregnancy. In their plea before the court, the couple argued that under Muslim personal law, a girl who had attained puberty was competent to marry, and that if the marriage was valid, the subsequent sexual relationship could not lead to criminal liability.
The court rejected that argument, saying a marriage under Muslim personal law does not by itself remove the criminality of sexual relations with a minor. "To quash the FIR merely because the parties describe themselves as married and petitioner no. 2 supports petitioner no. 1 would effectively introduce a marital exception into the POCSO Act for a category of children for whom Parliament has consciously provided none," it said. The court added that marriage does not change a child's age, and drew a distinction between the civil validity of a marriage and the criminal consequences of sexual intercourse with a minor.
Justice Narula said that even if the marriage was assumed to be valid under Muslim personal law, it could not create an exception to the POCSO Act or the Bharatiya Nyaya Sanhita. "The conclusion is narrower: a marriage claimed to be valid under Muslim personal law cannot, by reason of that status alone, confer immunity from POCSO or BNS for sexual intercourse with a wife who was below 18 at the relevant time. Any other view would create, through judicial decision, an exception which Parliament has expressly excluded," the court said. The judge also noted the girl's stand, saying, "Her statement deserves to be heard with seriousness and dignity," but added that the issue was whether her consent below the age of 18, and the nikah said to have taken place before the sexual relationship, took the case outside POCSO and the BNS. The court held that they did not. - EndsWith PTI inputs
