Permitting Minor Wife To Cohabit With An Adult Husband Would Attract POCSO Liability: Allahabad High Court

The High Court was hearing a habeas corpus petition filed by a minor girl and her two-month-old child through her mother-in-law, seeking her release from the internment facility, where she had been lodged by the Child Welfare Committee following her husband’s arrest for marrying a minor.

A Division Bench comprising Justice J.J. Munir and Justice Sanjiv Kumar, while adjudicating the matter, observed that “permitting a minor to cohabit with an adult would make the husband liable for offences punishable under the POCSO Act as well.”

The petitioners were represented by Advocate Shakti Shanker Tiwari, while AGA Anil Kumar Mishra appeared for the State.

Background

The matter arose when a 16-year-old girl married a man named Mukesh of her free will on July 3, 2025. According to her high school marksheet, she was born on October 5, 2008, making her three months short of 17 at the time of marriage. After her father lodged a police complaint, an FIR was registered under Section 137(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) for child marriage.

Following the registration of the case, the husband was arrested and remanded to judicial custody, while the girl was placed in protective custody by the Child Welfare Committee as she refused to return to her parental home, citing danger to her life.

The petition sought her release from the Child Care Institution and her return to her husband’s family. The counsel for the petitioner relied on K.P. Thimmappa Gowda v. State of Karnataka (2011), arguing that since the marriage was consensual and the girl was above 16 years, no offence of rape was made out.

Court’s Observation

The Allahabad High Court rejected the reliance on K.P. Thimmappa Gowda, noting that the law had undergone “a sea change” after the Criminal Law (Amendment) Act, 2013, which raised the age of consent from 16 to 18 years.

The Bench further observed that the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the Indian Penal Code, had reaffirmed 18 years as the statutory age of consent under Section 63(vi).

The Court explained that under the BNS, “any sexual act with or without consent with a woman under 18 years of age constitutes rape” and that Exception 2—which previously permitted intercourse with a wife above 15 years, no longer applied.

The Bench also referred to the Supreme Court’s ruling in Independent Thought v. Union of India (2017), which read down Exception 2 to Section 375 IPC as unconstitutional for girls under 18 years of age.

The High Court emphasised that, in light of these developments, any claim of consent or marital relationship with a minor is legally irrelevant, as the law recognises minors as incapable of giving valid consent for sexual acts.

The Bench also dismissed the plea to transfer custody of the minor to her mother-in-law, reasoning that there was no legal mechanism to ensure that the husband and the minor would not resume cohabitation after his release from custody.

It directed that the minor be kept in protective custody until she attains majority, with regular medical supervision for both her and her infant child. The Court also permitted her mother-in-law to visit her periodically, subject to institutional regulations.

Conclusion

Dismissing the habeas corpus petition, the Court directed that the minor be released from state custody only upon attaining the age of 18 years, after which she would be free to live wherever she chooses.

The Bench further instructed the Chief Medical Officer to ensure proper healthcare and living conditions for the minor and her infant.

Cause Title: ABC v. State of Uttar Pradesh & Others (Neutral Citation: 2025:AHC:179468-DB)

Appearances:

Petitioners: Advocates Shakti Shanker Tiwari and Subhash Chandra Tiwari

Respondents: Anil Kumar Mishra, AGA

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