Muslim Personal Law Cannot Override POCSO Act Or BNS: Delhi High Court
The matter before the Delhi High Court revolved around the grant of bail of a muslim man who was roped in a criminal case registered under the provisions of the IPC and POCSO Act.
While granting bail to a muslim man booked under the provisions of the IPC and POCSO Act for allegedly marrying a minor girl who was assaulted by her stepfather, the High Court held that whether it was a case of precocious puberty or a case of valid Islamic marriage, the same couldnot possibly be adjudicated in bail proceedings. The High Court further stated that Muslim personal law cannot override the POCSO Act and/or BNS.
The prosecutrix, when 14 years old, bore her first child, forced by the heinous sexual assault of her stepfather. Later, the infant was given up for adoption. The applicant accepted her as his lawful bride. The husband of the prosecutrix approached the High Court seeking bail in a case registered against him under Sections 363 and 376 of the IPC and Section 6 of the POCSO Act.
The Single Bench of Justice Arun Monga observed, “Be that as it may, whether it is a case of precocious puberty or genuinely prosecutrix was of age of consent or it is a case of valid Islamic marriage, cannot possibly be adjudicated in bail proceedings herein. Position of law clearly is that Muslim personal law cannot override POCSO Act and/or BNS. Though, Supreme Court in K. Dhandapani (supra), taking a pragmatic view, due to peculiar facts therein opined to the contrary but barred it as precedent.”
Advocate Furkan Ali Mirza represented the Petitioner, while APP Sanjeev Sabharwal represented the State.
Factual Background
The Stepfather was in judicial custody and facing trial in a case registered under Sections 376(2)(n) of IPC & 6 of POCSO Act. The stepfather of the prosecutrix had earlier lodged an FIR against the applicant under Sections 363 and 376 of the IPC and Section 6 of the POCSO Act. The applicant was arrested, whereas the prosecutrix herself beseeched bail for him (her husband/the applicant). The applicant was under incarceration for over 11 months as an under-trial/accused. His alleged crime was that he married a minor. The husband’s age (24 years) was not disputed, and the Prosecutrix claimed herself to be 20 years.It was the prosecution's case that she was a minor, being 15-16 years old.
Reasoning
The Bench noted that the relationship between the applicant and the prosecutrix was not only consensual but also akin to that of live-in partners, and at present, both of them were fully entitled to enter into such a relationship, being 24 and 20 years old, respectively, as claimed by them.
The Bench was of the view that the applicant bona fide believed the marriage to be in accordance with the age of consent as prescribed by the law enacted by the Legislature. As per the Bench, the applicant was misled into believing that the prosecutrix, already being the mother of a child born to her from her earlier relationship (albeit by virtue of a sexual assault), and also appearing physically mature enough to be 18 years of age, was of majority.
Highlighting the violations of mandatory provisions of Section 48 BNSS, the Bench granted bail to the applicant.
Throwing light on the issue of child marriage and the way it is dealt with under the Hindu and Islamic Law, the Bench stated, “This raises a stark dilemma viz. should society be criminalized for adhering to long-standing personal laws ? Is it not the time to move towards a Uniform Civil Code (UCC), ensuring a single framework where personal or customary law does not override national legislation.”
Cause Title: Hamid Raza v. State of NCT of Delhi (Neutral Citation: 2025:DHC:8643)
Appearance
Petitioner: Advocates Furkan Ali Mirza, Asim Kirmani, Haris Ahmad, Abdul Wasih
Respondent: APP Sanjeev Sabharwal, Senior Advocate (Amicus Curiae) Nandita Rao, Advocate Amit Peswani, ASI Rakesh, Professor Faizan Mustafa, Dr. Mohd. Khalid Khan, Assistant Professor of Law Nehal Ahmed