The Delhi High Court has drawn a firm line between personal law and criminal liability, holding that a marriage recognised under Muslim personal law cannot override the Protection of Children from Sexual Offences Act when the wife was below 18 at the time of sexual intercourse.
In a judgment delivered on September 23, 2026, Justice Sanjeev Narula dismissed a petition seeking quashing of a First Information Report registered against a man for rape under the Bharatiya Nyaya Sanhita and offences under the POCSO Act. The court said that while personal law may determine whether a marriage has been contracted, it cannot create an exception to a criminal law where Parliament has not provided one.
"A marriage may have consequences for status, maintenance, legitimacy, residence and rights between the parties. It does not necessarily immunise conduct that a secular penal statute independently prohibits," the judge observed, underscoring that the existence of a marriage does not erase the operation of child protection laws.
The case arose from the relationship between a woman who was 16 years and three months old when she married the petitioner, who was then nearly 28, on December 20, 2024. The couple later lived together, and the woman became pregnant. Her age came to light only when she visited a government hospital during the pregnancy, triggering the criminal case.
According to the record before the court, the woman consistently told authorities that she had married voluntarily, with the consent of both families, and that she had not been subjected to force or coercion. She also supported the petitioner's bail plea. But the court said the question before it was not whether the relationship was consensual in a social or familial sense; it was whether the law permits sexual activity with a person below 18 to be insulated by marriage.
The petitioners argued that under Muslim personal law, a Muslim girl who had attained puberty was competent to marry, and that the subsequent sexual relationship therefore could not attract criminal liability. The court rejected that submission in categorical terms, saying POCSO fixes 18 as the age below which consent to sexual activity has no legal efficacy.
"POCSO leaves little room for ambiguity. Section 2(1)(d) defines a 'child' as any person below 18 (years). Section 3 makes penetrative sexual assault upon a child an offence; the child's consent does not take the act outside that provision," the court said.
The judgment also turned to the Bharatiya Nyaya Sanhita, noting that Section 63 treats sexual intercourse with a woman below 18 as rape irrespective of consent, while the marital exception applies only where the wife is not below 18. In other words, the statute itself preserves a narrow marital exception only for adult wives, not children.
"POCSO fixes 18 (years) as the threshold for sexual consent. The BNS fixes the same threshold and expressly withholds the marital exception where the wife is below 18. The Prohibition of Child Marriage Act, 2006 separately defines a female below 18 as a child, and attaches penal consequences to an adult male contracting a child marriage," the court said.
The ruling is significant because it places child protection law above competing claims rooted in personal law, at least where the legislature has spoken clearly. The court's reasoning suggests that even where a marriage may be valid under a religious or customary framework, it cannot be used as a defence against offences designed to protect minors from sexual exploitation.
The judgment also reflects the broader legal architecture in India, where child marriage is prohibited and sexual activity with a minor is criminalised regardless of apparent consent. By refusing to quash the FIR, the court signalled that the age of the victim remains the decisive factor under POCSO and the BNS, not the formality of marriage or the parties' assertions of voluntariness.
For the petitioner, the decision means the criminal case will proceed. For child protection law, it reinforces a principle increasingly central to Indian jurisprudence: personal law may govern family status, but it cannot dilute statutory safeguards enacted to protect children from sexual abuse.