Kerala HC: Muslim Personal Law cannot shield husband from POCSO case over sexual assault with minor wife
The Kerala High Court refuses to quash proceedings against 27-year-old Muslim man who claimed he had married the girl when she was 17; rules POCSO applies irrespective of Muslim Personal Law.
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The Kerala High Court has held that marriage cannot shield a Muslim man from prosecution under the Protection of Children from Sexual Offences (POCSO) Act when the victim was below 18 years of age.
Justice Jobin Sebastian dismissed a petition filed by a 27-year-old man seeking to quash criminal proceedings against him in a case involving allegations of kidnapping and repeated sexual assault of a 17-year-old girl whom he claimed to be his wife.
Image : IANS
The court held that even if the said nikah had been solemnised as per Muslim rites, it would not absolve the accused of criminal liability under POCSO.
The court also rejected his argument that the marital exception under the rape provisions of the IPC protected him from prosecution. The ruling came in X v. X & Others, Crl.M.C. No. 8899 of 2024.
Accused claimed he married the girl at 17
According to the prosecution case, the accused took the girl in a car to his residence on October 23, 2021 and sexually assaulted her repeatedly over the following four days. He kidnapped her, while two other accused facilitated the offences.
The accused approached the High Court seeking quashing of the criminal proceedings. His principal defence was that the girl was his legally wedded wife as per Muslim Personal Law.
He claimed that they had married on July 23, 2021, when she was 17 years and one month old, in accordance with Islamic practices and in the presence of their families.
He relied on statements given to police by the girl, her brother and the Qazi of the mosque where the nikah was said to have taken place.
The High Court, however, noted that no documentary evidence establishing the nikah had been produced.
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Whether a valid marriage had actually taken place was a question of evidence that would have to be determined by the trial court, the judge held.
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Even a nikah under Islam does not override POCSO
The court made it clear that the question of nikah would not change the applicability of POCSO to a girl below 18.
Section 2(1)(d) of the POCSO Act defines a child as a person below 18 years of age.
The High Court held that where one of the parties to a marriage is a minor, POCSO applies irrespective of whether the nikah is valid under Muslim personal law.
🚨 BIG BREAKING
— Megh Updates 🚨™ (@MeghUpdates) September 1, 2026
Kerala High Court has drawn a clear line: Sexual intercourse by a Muslim man with his minor wife attracts the POCSO Act — irrespective of the marriage’s validity under Muslim personal law or claims of Sharia.
The Court held that a minor is a minor. Consent,… pic.twitter.com/VWnRObHglB
Section 42A of the Act gives POCSO overriding effect in case of inconsistency with other laws.
The court observed that, even assuming that the nikah had been solemnised according to Muslim rites, that would not “salvage” the accused's criminal liability because the girl was 17 at the time of the nikah and subsequent sexual acts.
Supreme Court precedent rejected marital exception argument
The accused had also relied on Exception 2 to Section 375 of the IPC, arguing that sexual intercourse with one's wife was excluded from the definition of rape in certain circumstances.
The High Court rejected that contention, relying on the Supreme Court's 2017 judgment in Independent Thought v. Union of India.
In that judgment, the Supreme Court read down the marital rape exception so that sexual intercourse or sexual acts by a man with his wife are not protected where the wife is under 18 years of age.
The Kerala High Court said the Supreme Court's ruling makes it clear that a person can be prosecuted for rape where the girl is between 15 and 18, even if she is claimed to be his wife.
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Court says allegations warrant trial
The High Court also emphasised the limited scope of its jurisdiction while considering a petition to quash criminal proceedings.
It found that the allegations, if taken at face value, prima facie disclosed the offences alleged against the accused. Determining the credibility of the allegations and assessing the evidence would be matters for the trial court, not for the High Court at the quashing stage.
The petition was therefore dismissed and the criminal proceedings were allowed to continue.
The ruling does not amount to a conviction. The High Court expressly confined its observations to deciding the petition for quashing and left the merits of the criminal case to be determined at trial.
What the ruling means
The judgment reinforces the statutory protection available to children under POCSO: a girl below 18 remains a child for the purposes of the Act, irrespective of her marital status.
The court's ruling also makes clear that an accused cannot use a nikah under Muslim personal law as a basis to automatically escape prosecution under POCSO.