Rubi And 18 Others vs State Of U.P. And 3 Others

Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. WRIT PETITION No. - 4846 of 2026
Rubi and others
…..Petitioners
Versus
State of U.P. and others
…..Respondents
Counsel for the Petitioners : Pooja
Counsel for the Respondents : G.A.
Court No. – 2
HON'BLE J.J. MUNIR, J.
HON'BLE ACHAL SACHDEV, J.
(Delivered by Hon’ble J.J. Munir, J.)
1. This writ petition has been instituted with a prayer that the
First Information Report (for short, 'FIR') dated 15.02.2026, giving
rise to Crime No. 54 of 2026, under Sections 191(2), 132, 121(1),
352 and 351(2) of the Bharatiya Nyaya Sanhita, 2023 ('BNS', in
short), Police Station Kakor, District Bulandshahr, be quashed.
2. The petitioners are nineteen in number. The FIR in this case
has been lodged by Sub-Inspector Vinay Kumar, posted at P.S.
Kakor, District Bulandshahr. The FIR is about the Police and the
Child Line Team endeavouring to prevent the petitioners from
going ahead with the marriage of a minor, Sonam daughter of
Taufiq and the offence that was allegedly committed by the
petitioners, vis-a-vis the police personnel and the Child Line Team
as they went about the enterprise of preventing this child
marriage. According to the Sub-Inspector Vinay Kumar, in his FIR
addressed to the Station House Officer, P.S. Kakor, District
Bulandshahr, he has said that the informant along with the In-

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CRLP No. - 4846 of 2026
charge of the Child Line Team, Bulandshahr, Abhishek Kumar,
Neeraj Kumar Sharma, case worker, Km. Gulista, case worker
and Sub-Inspector Dhani Ram, also from P.S. Kakor,
Bulandshahr, proceeded together to Village Sunpeda Baksuwa,
the place about which they had received information of the
impending child marriage of Sonam daughter of Taufiq aged about
16 years. They left P.S. Kakor vide G.D. Entry No.18 dated
15.02.2026 at 11.29 a.m. Their object was to prevent the child
marriage. They reached the victim's house in Village Sunpeda
Baksuwa and members of the Child Line Team spoke to Sonam's
parents, besides the victim herself. After inquiries into the matter,
the members of the Child Line Team disclosed their intention of
producing her before the Child Welfare Committee, Bulandshahr,
and asked the victim and her parents to come along with them for
the purpose of the aforesaid production. Thereupon, men and
women present there, nineteen of whom are named and are the
writ petitioners here, besides fifty others unknown, abused the
Police and the Child Line Team personnel, threatened them and
forcibly took away the victim from the custody of Km. Gulista of
the Child Line Committee.
3. The Police and members of the Child Line Team, facing
aggression of the petitioners, somehow escaped in order to save
their life. This act of the petitioners, according to the informant,
constituted obstruction in the discharge of duties by a public
servant. The Police and the Child Line Team, tiding over these
odds, somehow managed to rescue Sonam and in the
safekeeping of Km. Gulista (Member, Child Line Team), brought
her away. The nineteen of the petitioners are nominated in the
FIR, as already said, besides the fifty other offenders, whose
identity could not be ascertained. It is said by the first informant
that he has video-graphed the entire occurrence, which is
available with him. It is on these allegations that the impugned
FIR has been registered against the petitioners.

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CRLP No. - 4846 of 2026
4. Heard Ms. Pooja, learned Counsel for the petitioners in
support of the motion to admit this petition to hearing and Mr.
Ghanshyam Kumar, learned Additional Government Advocate-I
along with Mr. Shashi Shekhar Tiwari, learned Additional
Government Advocate, who have opposed the motion.
5. Ms. Pooja, learned Counsel for the petitioners, has been at
pains to show to us that under the Shariat Law applicable to
Muslims, a girl, after she attains the age of puberty generally
regarded as 15 years, is competent to marry. The Prohibition of
Child Marriage Act, 2006 (for short, 'the PCMA') would not affect
the personal law of the petitioners about marriage. It has been
pointed out that under Section 3 of the Majority Act, 1875, though
the age of majority stipulated for a person is 18 years, Section 2
thereof carries a non obstante clause, excluding laws relating to
marriage, dower, divorce and adoption from the purview of the
said Act. Learned Counsel for the petitioners has also referred to
us Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937 (for short, 'the Shariat Law') to submit that the aforesaid
provision too carries a non obstante clause, which reads:
“ 2. Application of Personal Law to Muslims. —
Notwithstanding any custom or usage to the contrary, in
all questions (save questions relating to agricultural
land) regarding intestate succession, special property
of females, including personal properly inherited or
obtained under contract or gift or any other provision
of Personal Law. marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and
trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious
endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law
(Shariat).”
6. Speaking for ourselves, though we are aware that there is
division of opinion amongst the High Courts, whether a minor who
is married under the Muslim Law, would be governed by the
provisions of the Personal Law or the Protection of Children from
Sexual Offences Act, 2012 (for short, 'POCSO Act') and the
PCMA. If we may dare say, we are in complete agreement with

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CRLP No. - 4846 of 2026
the reasoning of P.V. Kunhikrishnan, J. in Moidutty Musliyar and
others v. Sub Inspector Vadakkencherry Police Station and others,
2024 SCC OnLine Ker 4188 that no personal law can wipe out the
prohibition of child marriage brought about by the PCMA, and the
effect of the POCSO Act, which renders sexual intercourse with a
child, that is a person below 18 years, a crime under that statute.
The age of marriage, in our considered opinion, for every citizen
of the country, irrespective of religion, is that, that is spelt out by
the PCMA. Also, it is equally true that if the marriage of a person
below 18 years were permitted, carnal relations being inseparable
almost form the institution of marriage, it would be an
acknowledged violation of the POCSO Act. The PCMA and the
POCSO Act are statutes that are based on public health and
national policy in this regard. They have a scientific understanding
to them, legislatively translated into prohibitory statutes and there
can be no escape from it for anyone.
7. Given the fact that the Majority Act by Section 2(a) makes
the stipulated age inapplicable to the capacity of persons to act in
the matter of marriage, amongst others, is besides the point
because the PCMA is a much later statute and so is the POCSO
Act. By Section 1(2) of the PCMA, it extends to the whole of India
and apply also to all citizens of India, without and beyond India. A
later statute, which is all encompassing, that is for all citizens,
would prevail over the exception made in the Majority Act, 1875. It
may also be noted that the marriage performed in violation of the
PCMA may be viodable and not void, but the act of performing
such a marriage by different parties is punishable by law. The
offences under the PCMA are cognizable and non-bailable by
virtue of Section 15 thereof. Despite the clear exposition of the
law by the Supreme Court in Independent Thought v. Union of
India and another, (2017) 10 SCC 800, the controversy has
continued with some High Courts opining that age of majority and
the capacity to marry for Muslims would be governed by the

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CRLP No. - 4846 of 2026
Shariat Law, nonetheless. This question again arose before the
Supreme Court in Society For Enlightenment & Voluntary Action v.
Union of India, 2024 SCC OnLine SC 2922. In that case, their
Lordships have struck a note of doubt pending passage of the
Prohibition of Child Marriage (Amending) Bill 2021, introduced in
st
Parliament on 21 December 2021. The following remarks of their
Lordships in Society For Enlightenment (supra) are relevant:
“ X. Suggestions
212. In the course of this judgment, we have traced the
full breadth of the law against child marriage. The
PCMA is the central legislation governing the issue on
the subject. In light of the Constitutional guarantees
accruing to children, we observe certain gaps in the
PCMA. Absent a Constitutional challenge or a case being
argued, we resist from making declarations and restrict
ourselves to making suggestions for the scrutiny of the
Union. The legal question on these issues, however, is
kept open if it were to come before a Constitutional
court in an appropriate proceeding.
213. The issue of the interface of personal laws with
the prohibition of child marriage under the PCMA has
been a subject of some confusion. The Union in its note
of submission filed after the judgment was reserved in
the case has stated that this Court may direct that the
PCMA prevails over personal law. The note states as
follows:
“9. As a way forward, Ministry of Women & Child
Development has following inputs to provide for kind
consideration of the Hon'ble Court—
i. There are conflicting pronouncements by various
High Courts about the precedence of the Prohibition
of Child Marriage Act (PCMA), 2006 over the
personal laws. Hence, Hon'ble Court may consider
issuing directions pronouncing that the PCMA will
prevail over the personal laws governing marriage.
…”
214. Details of the conflicting opinions were not
furnished in the submissions by either party to these
proceedings. The PCMA states nothing on the validity of
the marriage as we have noted above. The Prohibition of
Child Marriage (Amending) Bill 2021 was introduced in
Parliament on 21 December 2021. The Bill was referred
for examination to the Department Related Standing
Committee on Education, Women, Children, Youth and
Sports. The Bill sought to amend the PCMA to expressly
state the overriding effect of the statute over various
personal laws. The issue, therefore, is pending
consideration before Parliament.
215. Lastly, we note that while the PCMA seeks to
prohibit child marriages, it does not stipulate on
betrothals. Marriages fixed in the minority of a child

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CRLP No. - 4846 of 2026
also have the effect of violating their rights to free
choice, autonomy, agency and childhood. It takes away
from them their choice of partner and life paths before
they mature and form the ability to assert their
agency. International law such as CEDAW stipulates
against betrothals of minors. Parliament may consider
outlawing child betrothals which may be used to evade
penalty under the PCMA. While a betrothed child may be
protected as a child in need of care and protection
under the JJ Act, the practice also requires targeted
remedies for its elimination.
XI. Conclusion
216. A copy of this Judgment will be transmitted to the
Secretaries of all concerned Ministries, the Government
of India which includes the Ministry of Home Affairs,
Ministry of Women and Child Development, Ministry of
Panchayati Raj, Ministry of Education, Ministry of
Information and Broadcasting, Ministry of Rural
Development, statutory authorities, institutions, and
organizations under the control of the respective
ministries.
217. The Ministry of Women and Child Development is
directed to circulate this judgment to the Chief
Secretaries/Administrators of all the States and Union
Territories, as well as NALSA, and NCPCR for strict
compliance with the directions. This shall be done
within a period of four weeks from the date of delivery
of this judgment.
218. The writ petition is disposed of.
219. Pending application(s), if any, stand disposed
of.”
8. We were informed during the hearing and we believe not
without basis that the Prohibition of Child Marriage (Amending)
th
Bill 2021 has lapsed with the dissolution of the 17 Lok Sabha.
We have not been shown anything that the Bill is still pending
consideration before the Parliament. The controversy has again
surfaced before the Supreme Court, when the Punjab & Haryana
High Court in Javed v. State of Haryana and others, CRWP No.
7426-2022 (O&M) dated 30.09.2022 held that a Muslim female
aged 15 years could marry a person of her choice, on her own
willingness and consent, and the marriage would not be affected
by Section 12 of the PCMA. This judgment has been impugned
before the Supreme Court in National Commission For Protection
Of Child v. Javed and others, Special Leave Petition (criminal)
Diary No.35376 of 2022, where their Lordships issued notice and
passed the following order on 13.01.2023:

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CRLP No. - 4846 of 2026
“ UPON hearing the counsel the Court made the following
O R D E R
1 We are inclined to entertain the Special Leave
Petition which has been instituted by the National
Commission for Protection of Child Rights (NCPCR) with
a view to resolving the question of law which is
raised.
2 Issue notice.
3 Mr Rajshekhar Rao, senior counsel, who has been
appointed as Amicus Curiae in SLP (Crl) No 10036 of
2022 raising a similar issue, is requested to assist
the Court in the present case as well.
4 Tag with SLP (Crl) No 10036 of 2022.
5 SLP (Crl) No 10036 of 2022 is de-tagged from Item No
31 [TP (C) Nos 1249- 1250 of 2020].
6 Pending further orders, the impugned judgment of the
High Court dated 30 September 2022, shall not be relied
on as a precedent in any other case.
7 List the Special Leave Petitions on 6 February 2023.
Diary No 1156/2023, Diary No 1205/2023 and Diary No
1208/2023
1 On mentioning, these matters are taken on Board.
2 Tag with SLP (Crl) Diary No 35376/2022.”
9. Taking note of the development and the law until that time,
the Delhi High Court in Mohd. Amaan Malik v. State (NCT of
Delhi), 2023 SCC OnLine Del 3870 observed:
“ 12. It is also the case of the petitioner that the
parties in the present case will be governed by the
Muslim personal laws and the POCSO Act will have no
applicability in the present case. In this regard, this
Court notes that this issue has been a contentious one
and remains at the heart of controversy in several
cases decided by the High Courts across the country.
The Hon'ble Karnataka High Court in Aleem Pasha v.
State of Karnataka , 2022 SCC OnLine Kar 1588 observed
that the POCSO Act, being a special legislation to
protect children from sexual offences, will have an
overriding effect on Muslim personal law. Earlier also,
similar observations were made by Hon'ble Karnataka
High Court in Rahul v. State of Karnataka , 2021 SCC
OnLine Kar 12728. Recently, the Hon'ble Kerala High
Court in Khaledur Rahman v. State of Kerala , 2022 SCC
OnLine Ker 5833 also held that the marriage between
Muslims under personal law is not excluded from the
scope of the POCSO Act and if one of the parties to the
marriage is a minor, irrespective of the validity or
otherwise of the marriage, offences under the POCSO Act
will apply. The Court, while referring to Section 42-A
of the POCSO Act observed that the POCSO Act will
prevail over personal laws and customary laws. To the

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CRLP No. - 4846 of 2026
contrary, this Court in Fija v. State (NCT of Delhi) ,
2022 SCC OnLine Del 2527 had observed that where the
accused, who was a Muslim, had sexual intercourse
during the course of marriage with his wife who was a
minor Muslim, he was not guilty under the POCSO Act as
the personal law has an overriding effect on special
laws. Further, the Hon'ble Punjab and Haryana High
Court in case of Gulam Deen v. State of Punjab , 2022
SCC OnLine P&H 1485 had taken a view that the marriage
of a Muslim girl is governed by Muslim personal law,
and a Muslim girl above 15 years of age is competent to
enter into marriage. However, in Special Leave Petition
(Criminal) No. 26834/2022 filed by National Commission
for Protection of Child Rights (NCPCR) against the said
decision, the Hon'ble Apex Court had agreed to examine
the question if a minor Muslim girl can marry on
attaining puberty. Similarly, the Hon'ble Punjab and
Haryana High Court in Javed v. State of Haryana
CRWP-7426-2022(O&M) also had held that Muslim female
aged 15 years and above could marry a person of her
choice on her own willingness and consent, and such a
marriage would not be void in terms of Section 12 of
the Prohibition of Child Marriage Act, 2006. However,
vide order dated 13.01.2023 in Special Leave Petition
(Criminal) No. 35376/2022 filed by NCPCR, the Hon'ble
Apex Court ordered that the judgment in case of Javed
(supra) should not be relied upon as a precedent in any
other case. In a nutshell, as on date, the issue as to
whether a girl attaining age of majority as per puberty
after 15 years of age would be governed by the
provisions of the POCSO Act/Child Marriage Restraint
Act or not, is pending for consideration and
adjudication before the hon'ble Apex Court.”
10. If one were to take note of the remarks in Mohd. Amaan
Malik (supra), Swarana Kanta Sharma, J. has taken note of the
flux in the state of law on the subject because of the pending
question before the Supreme Court and the conflict of opinion
amongst the High Courts. We note that neither the Parliament
have legislated in terms of what the Supreme Court was
expecting in Society For Enlightenment & Voluntary Action (supra)
nor the question seems to have been settled by an authoritative
pronouncement of the Supreme Court so far. What the Delhi High
Court noticed to be a pending question before the Supreme Court
in Mohd. Amaan Malik (supra) does not appear to have been
decided finally. A number of connected matters, which include the
Special Leave Petition arising out of the judgment and order of the
Punjab and Haryana High Court in CRWP No. 7426 of 2022
(O&M), Javed v. State of Haryana and others, decided on
30.09.2022, came to be dismissed by the Supreme Court mostly

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CRLP No. - 4846 of 2026
on the question of locus standi vide order dated 19.08.2025. The
only case where the question seems to be involved is W.P. (C)
No. 814/2023 (PIL-W), which, by the order dated 19.08.2025, was
adjourned to 26.08.2025. The order dated 19.08.2025 passed in
Special Leave to Appeal (Crl.) No(s). 10036/2022, National
Commission For Protection Of Child Rights (NCPCR) v. Gulaam
Deen & Ors., reads:
“UPON hearing the counsel the Court made the following
O R D E R
SLP (Crl.) Nos. 10036/2022 and 2206/2023
The petitioners herein are National Commission for
Protection of Child Rights (NCPCR) and National
Commission for Women (NCW) respectively.
The writ petition before the High Court, being CRWP
No.5744/2022, was filed by Gulaam Deen and another
under Articles 226/227 of the Constitution of India
seeking a writ of Mandamus directing respondent nos.2
to 4 therein to protect their life and liberty owing to
their apprehensions as a result of threats at the
instance of private respondent nos.5 and 7 therein. The
High Court has granted the prayer(s) of the
petitioner(s) therein.
We fail to see as to how the petitioners herein can be
aggrieved by such an order. If the High Court in
exercise of its jurisdiction under Article 226 of the
Constitution of India seeks to extend protection to two
individuals, it is strange that the petitioners are
challenging such an order. The petitioners herein, in
fact, have no locus standi to challenge the same.
It is strange that if the High Court has extended
relief to minor children, the NCPCR, which is meant for
protection of children assails such an order of the
High Court. Hence, the special leave petitions are
dismissed.
Pending application(s) shall stand disposed of.
Diary No. 35376/2022 and SLP(Crl) No. 2207/2023
Permission to file Special Leave Petition(s) is
granted.
The petitioners herein are National Commission for
Protection of Child Rights (NCPCR) and National
Commission for Women (NCW) respectively.
The writ petition before the High Court, being CRWP
No.7426/2022, was filed by Javed under Articles 226/227
of the Constitution of India seeking a writ in the
nature of Habeas Corpus directing respondent nos.2 and
3 therein to release the detenue, who was stated to be
in the custody of Ashiana, Sector 16, Panchkula. The

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CRLP No. - 4846 of 2026
High Court in exercise of its jurisdiction under
Articles 226/227 of the Constitution of India directed
that the custody of detenue be handed over to the
petitioner therein. The said order has been assailed by
the petitioners herein. We find that the petitioners
have no locus standi to challenge the same.
Hence, the special leave petitions are dismissed.
Pending application(s) including the application for
intervention/impleadment shall stand disposed of.
SLP(Crl) No. 1934/2023
The petitioner herein is National Commission for Women
(NCW).
The writ petition before the High Court being W.P.
(Crl.) No.763/2022 was filed by Fija and another
seeking a writ of Mandamus or any other writ directing
respondent nos.1 to 3 therein to grant protection to
the petitioners therein and further directing them to
ensure that nobody separates the petitioners therein
from each other.
We fail to see as to how the petitioner herein can be
aggrieved by such an order. If the High Court in
exercise of its jurisdiction under Article 226 of the
Constitution of India seeks to grant the prayer(s)
sought for by the petitioner(s) therein, it is strange
that the petitioner is challenging such an order. The
petitioner herein has no locus standi to challenge the
same.
Learned counsel for respondent nos.1 and 2 submitted
that the said respondents are happily married and also
have a girl child of two years. The said fact is also
placed on record.
Hence, the special leave petition is dismissed.
Pending application(s) shall stand disposed of.
We place on record our sincere appreciation to the
assistance rendered by Shri Rajshekhar Rao, learned
senior counsel as Amicus Curiae of this Court in these
matters.
W.P.(C) No. 814/2023
De-tagged from rest of the matters.
Learned senior counsel for the petitioner submitted
that he would place on record the judgments/orders
passed by this Court in the context of the prayers
sought for by the petitioner herein and on that basis
possibly the writ petition could be disposed of.
Hence, list on 26.08.2025.”
11. It, therefore, appears that there is no authoritative
pronouncement by the Supreme Court on the point, but that does
not preclude us from holding on the question involved the correct

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CRLP No. - 4846 of 2026
view of the law. We have already expressed it and we say it again
in tune with the line of authority that has held likewise, and that is
that the Shariat Law providing for puberty as the competent age
under the law permissible for a girl to marry or be married, runs
clearly in the teeth of the PCMA as well as the POCSO Act.
12. Turning to the facts of the present case, what we find is that
there was a determined attempt to marry a girl of by her parents
and the community while she was below 18 years of age. She
was being married contrary to the mandate of the PCMA, and if
married, in all likelihood and even logically, would have led to a
transgression of the POCSO Act. Marriages solemnized are
consummated as well, and once consummated, the POCSO Act
comes into play. If, therefore, in a position as the present one, the
Police and the Child Line Team swung into action and rescued the
victim, they were indeed acting within the four corners of law and
most certainly in the bona fide discharge of their duties under the
law. The Police as well as the Child Line Team were conscious of
their duties under the PCMA and also acting to prevent a possible
violation of the POCSO Act. While their action is certainly
commendable, what lies at the bottom of the FIR here is, is an
assault on the police party and the Child Line Team. While they
were about their task in rescuing the victim, they were abused and
threatened, and according to the allegations in the FIR, had to
save their lives from the aggression of the petitioners and the
other unnamed offenders. The victim was forcibly taken away
from their care and custody, till she was finally rescued. This is
certainly a case where obstruction in the performance of duties of
a government servant is prima facie made out. The other offences
disclosed also require thorough investigation.
13. It has been argued that there is no medical report on record
to justify the invocation of Sections 121(1) and 132 BNS, no overt
acts having been assigned. It is also argued that the ingredients

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CRLP No. - 4846 of 2026
of Section 351(2) BNS are not disclosed as no alarm was caused
in the mind of the informant. The submission is that there is no
independent witness of the incident. We regret, we cannot agree.
The offences are clearly disclosed. It maybe not one offence more
or one less, but, that ultimately would be the subject matter of the
charge-sheet submitted after investigation, or may be, the charge,
if framed by the Trial Court. It is also possible that some of the
petitioners might not be found involved in the occurrence. But,
whatever it is, the nature of the allegations and the corpus delicti
is such that it is not at all a fit case, where we ought interdict
investigation at an incipient stage by quashing the FIR and setting
at naught the process of investigation.
14. In the result, we do not find any good ground to interfere
with the FIR impugned. This writ petition is dismissed.
15. The interim stay order dated 06.04.2026 is hereby vacated.
16. Let this order be communicated to the Senior
Superintendent of Police, Bulandshahr and the Station House
Officer, P.S. Kakor, District Bulandshahr, both through the learned
Chief Judicial Magistrate, Bulandshahr by the Registrar
(Compliance).
(Achal Sachdev,J.) (J.J. Munir,J.)
July 01, 2026
Anoop
Digitally signed by :-
ANOOP KUMAR SINGH
High Court of Judicature at Allahabad