Marriage under Muslim personal law cannot shield sex with a wife below 18 from POCSO or BNS: Delhi High Court

Petitioner No. 2 was born on 19 September 2008 and married Petitioner No. 1 on 20 December 2024, when she was sixteen years and three months old; Petitioner No. 1 was approximately twenty-eight. They claimed that the marriage was voluntary and consented to by both families, and thereafter lived together. Petitioner No. 2 consistently denied force, coercion or sexual assault and stated that she supported Petitioner No. 1

During a pregnancy-related visit to a government hospital in May 2026, her age was discovered from school records. The police registered FIR No. 189/2026 under Section 64(1) of the Bharatiya Nyaya Sanhita, 2023 (“BNS”) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”).

The foetus subsequently died in utero and Petitioner No. 2 delivered a stillborn child; an order was obtained for exhumation and DNA profiling.

The Petitioners sought quashing of the FIR, disciplinary action against the police officers, and compensation, primarily contending that the marriage was valid under Muslim personal law because Petitioner No. 2 had attained puberty.

1. Whether a marriage allegedly valid under Muslim personal law, solemnised with a girl who had attained puberty but was below eighteen, exempts subsequent sexual intercourse from the operation of POCSO and Section 63 of the BNS

2. Whether the voluntary consent of Petitioner No. 2, absence of force or coercion, family approval, and her continued support for Petitioner No. 1 justified quashing the FIR under the Court’s inherent jurisdiction

3. Whether the registration of the FIR was unlawful in the absence of a complaint from Petitioner No. 2 or her family, and whether the Petitioners were entitled to disciplinary action or compensation

The Court applied Section 2(1)(d) POCSO, which defines a child as a person below eighteen; Sections 3, 5 and 6 POCSO, which criminalise penetrative and aggravated penetrative sexual assault against a child irrespective of consent; and Section 42-A POCSO, which gives the Act overriding effect in case of inconsistency with other laws.

Section 63 BNS treats sexual intercourse with a woman below eighteen as rape irrespective of consent and restricts the marital exception to a wife who is not below eighteen.

The Court also considered the Prohibition of Child Marriage Act, 2006, the Muslim Personal Law (Shariat) Application Act, 1937, and the principle that personal law cannot override a later, generally applicable penal statute.

Relying on Independent Thought v. Union of India, (2017) 10 SCC 800, and Society for Enlightenment and Voluntary Action v. Union of India, 2024 INSC 790, the Court held that marriage does not remove sexual intercourse with a minor wife from POCSO.

The Court further held that the reporting obligation under Section 19 POCSO is not dependent upon a complaint by the child or her family.

The Court held that the legal validity or civil consequences of the nikah and the criminal character of subsequent sexual intercourse were distinct questions; it therefore assumed, without deciding, that the marriage could be valid under Muslim personal law.

Since Petitioner No. 2 was below eighteen when the sexual relationship commenced, her consent, family approval and absence of force could not negate the statutory ingredients of POCSO or Section 63 BNS.

The Court rejected the argument that puberty could substitute the statutory age of eighteen, observing that POCSO and the BNS establish a bright-line age threshold which cannot be altered through a case-specific assessment of maturity or voluntariness.

The admitted sexual relationship, the pregnancy and the minor’s age disclosed a prima facie offence, making the case unsuitable for quashing at the threshold.

The hospital’s reporting was also lawful because POCSO imposes a statutory reporting obligation, and the absence of a private complaint did not invalidate the FIR.

The Court distinguished exceptional decisions where proceedings had been terminated on their peculiar facts, including Harmeet Singh, and held that those decisions did not create a general marital or consensual exception to POCSO.

The petition seeking quashing of FIR No. 189/2026 was dismissed. The prayers for disciplinary proceedings against the police and compensation were also rejected.

The Court clarified that its observations were confined to the quashing petition and did not constitute findings on Petitioner No. 1’s guilt; the trial court was directed to decide the matter independently on the evidence, and the existing bail order was left undisturbed.