The Delhi High Court has held that a marriage valid under Muslim personal law cannot override statutory penal provisions enacted to protect children, holding that personal law confers no immunity against criminal prosecution for sexual intercourse with a wife under eighteen years of age.

The Court refused to quash an FIR registered 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).

It was also held that constitutional liberty protects choice; it does not create an exception to POCSO or the BNS. Nor does Section 2 of the Muslim Personal Law (Shariat) Application Act, 193730 contain any such immunity. 

The Bench of Justice Sanjeev Narula held, "The conclusion is narrower: a marriage claimed to be valid under Muslim personal law cannot, by reason of that status alone, confer immunity from POCSO or the BNS for sexual intercourse with a wife who was below eighteen at the relevant time. Any other view would create, through judicial decision, an exception which Parliament has expressly excluded."


Advocate Avnish Singh appeared for the Petitioners, while Additional Standing Counsel Rahul Tyagi appeared for the Respondents

Recently, the Kerala High Court has also held that a Muslim man engaging in sexual intercourse with a girl under 18 years of age is liable for prosecution for rape under the Indian Penal Code (IPC) and the POCSO Act, even if the victim is his wife under Muslim personal law.

Brief Facts

Petitioner No. 2 i.e. the girl, married Petitioner No. 1 in 2024 when she was only 16 yrs old. Petitioner No. 1 was around 28 yrs old. After living together, by May 2026, the girl was about eight months pregnant. The FIR was not originated from any accusation made by the girl. The girl's case was that she had married of her own volition. She maintained that she was never compelled or forced to get married to Petitioner No. 1 or subjected to any forcible sexual relationship thereafter.

But, unfortunately, the foetus died in utero, and a stillborn child was delivered.

An FIR was registered under Section 64(1) of the Bharatiya Nyaya Sanhita, 20231 and Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The petitioners, therefore, approached the Court seeking quashing of the FIR.

Submissions by the Parties

The principal submission of the Petitioners was founded upon Muslim personal law. Reliance was placed upon Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 and upon the principle stated in Mulla’s Principles of Mahomedan Law that a Muslim of sound mind who has attained puberty is competent to contract marriage, puberty being presumed, in the absence of evidence, upon completion of fifteen years.

The Petitioners also submitted that Petitioner No. 2 had attained puberty before the nikah on 20th December, 2024 and was therefore competent to marry under Muslim personal law.

Observations/Findings of the Court

The Court dealt with two important questions, i.e. the legal character and consequences of a nikah solemnised by a Muslim girl who has attained puberty but is still below eighteen. The other was whether that nikah, by itself, places subsequent sexual intercourse beyond the reach of POCSO and BNS while she remains a child under those statutes.

After referring to the POCSO Act and the BNS, the Court observed, "This is a deliberate legislative arrangement. POCSO fixes eighteen as the threshold for sexual consent. The BNS fixes the same threshold and expressly withholds the marital exception where the wife is below eighteen. The Prohibition of Child Marriage Act, 200610 separately defines a female below eighteen as a child and attaches penal consequences to an adult male contracting a child marriage."

It added that the courts cannot substitute “puberty” for the age of eighteen fixed by POCSO and the BNS nor can the statutory line be redrawn through a case-specific assessment of whether a child of sixteen appeared mature enough to understand the relationship. 

"None of this renders the adolescent’s voice irrelevant. Her views must be heard and given due weight, consistently with her age and maturity, when the Court considers questions of custody, residence, protection, rehabilitation, bail and other measures concerning her welfare. They may also bear upon the exercise of discretion at an appropriate later stage, where the law permits. But they cannot alter the ingredients of the offence or create a defence that POCSO and the BNS do not recognise", it was held.

The Court also held that a marriage ceremony does not move a child into a lesser category of protection.

It was also observed that to quash the FIR merely because the parties describe themselves as married and Petitioner No. 2 supports Petitioner No. 1 would effectively introduce a marital exception into POCSO for a category of children for whom Parliament has consciously provided none.

"The FIR cannot be characterised as unauthorised merely because there was no complaint. The submission that neither Petitioner No. 2 nor her family approached the police also does not assist the Petitioners. POCSO intentionally does not make prosecution dependent upon a complaint by the child or her parents. Section 19 places an obligation to report an apprehended or committed offence under the Act; failure to report attracts consequences under Section 21", the Court held.

The Court noted that the freedom to choose a partner is an important facet of personal liberty, and the Constitution protects the freedom to profess and practise religion.

"Neither freedom, however, gives an adult a right to claim immunity from a generally applicable penal law enacted to protect children. Constitutional liberty protects choice; it does not create an exception to POCSO or the BNS...Nor does Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 contain any such immunity. Its non-obstante clause operates against “custom or usage to the contrary” in the matters enumerated therein. It does not purport to repeal or override POCSO or the BNS. POCSO, on the other hand, contains an express overriding provision in Section 42-A.", it held.

The Court held that the marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards. For POCSO and Section 63 BNS, that fact is determinative of the legal capacity to consent to the sexual act.

It was concluded that the law is conscious that individual cases may involve affection rather than violence, and relationships rather than predation, but that is precisely why the statutory threshold is expressed in terms of age rather than subjective intention.

Accordingly, the Court held that no case was made for quashing; hence, it dismissed the petition.

Cause Title: Bilal & Anr. v. State of NCT of Delhi & Ors. [Neutral Citation:2026:DHC:8343]

Appearances:

Petitioners: Advocates Avnish Singh, Mahendra Vikram Singh and Suraj Sharma

Respondents: Additional Standing Counsel Rahul Tyagi, Advocate Sangeet Sibou, Advocate Priya Rai, Advocate Neha Ghugtyal, Advocate Ajay Jangra, Advocate Avinash Kumar Singh, Advocate Priyansh Raj Singh

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