Is It Not Time To Move Towards Uniform Civil Code?: Delhi High Court Highlights Difference Under Hindu & Islamic Law On Marriage Of Minor Girls

The prosecutrix, barely 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 proseuctrix 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, “However, upon thoughtful consideration thereof, the recurring conflict is clear i.e. under Islamic law, a minor girl attaining puberty may lawfully marry, but under Indian criminal law such a marriage renders the husband an offender under the BNS and/or POCSO or both. 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?”

“A pragmatic middle path could be to standardize core protections, such as prohibiting child marriages across board with penal consequences as they directly conflict with both BNS and POCSO. At the same time, less contentious personal matters may be allowed to evolve gradually within respective communities. The decision is best left to the wisdom of the law makers of the country. But, lasting solution must soon come from the Legislature/Parliament”, it stated.

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 being 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

Addressing the defence, i.e. the applicant and prosecutrix being in a valid marriage, the Bench noted that under Muslim Personal Law, puberty (presumed at 15 years, unless proved otherwise) is the marriageable age for girls. Various precedents had upheld Islamic marriages of girls 15+ (even if under 18) as valid under Shariat. However, in cases where puberty or 15 years was not established, marriages had been declared void.

“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”, it stated.

Coming to the facts of the case, the Bench further noticed 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. “Secondly, it is debatable that, both of them being Muslims, they would be fully within their rights to practice their religion, which is a fundamental right under the Constitution of India, and since their religion and custom, as per the prevalent Islamic law, permits marriage, the same would be valid in their personal law, though it may be in contravention of the age of consent prescribed under the law enacted by the Legislature”, it added.

It was further noticed that 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. “Thus, he bona fide believed the marriage to be in accordance with the age of consent as prescribed by the law enacted by the Legislature”, it said.

It was noted by the Bench that the report to the police, though shown lodged in the name of the mother of the prosecutrix, was actually signed by the latter’s stepfather and not the mother. “Given the peculiar circumstances of the case, it seems that he had his own axe to grind for lodging the FIR twisting/distorting facts”, it added. As per the Bench, the female child was delivered by the prosecutrix on June 6, 2023. The prosecutrix had thus attained the age of puberty when she conceived about nine months before giving birth to the baby. Moroeve, before her marriage with the applicant on June 4, 2024, the prosecutrix had already attained puberty, a condition for the purpose of a valid marriage under Muslim law. It was further noted that the victim’s age was a disputed fact and could only be conclusively determined upon a full-fledged trial.

The Bench also noted that the mandatory provisions of Section 48 BNSS were violated since no relative or friend of the applicant was informed of his arrest or place of detention. The written grounds of arrest were not supplied to any relative or friend of the applicant, either, as mandated under Section 48 BNSS. The Bench thus ordered the applicant to be released on regular bail, subject to conditions to be imposed by the Trial Court.

Cause Title: Hamid Raza v. State of NCT of Delhi (Neutral Citation: 2025:DHC:8643)

Appearane

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

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