Delhi HC: Muslim marriage cannot override POCSO protection for minor wife
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New Delhi , Sept 28 : The Delhi High Court has held that a marriage claimed to be valid under Muslim personal law cannot provide immunity from criminal prosecution for sexual relations with a wife who was below 18 years of age.
Justice Sanjeev Narula made the observation while refusing to quash a criminal case against a man accused of sexually assaulting his minor wife. The Court said allowing marriage to override the Protection of Children from Sexual Offences (POCSO) Act would weaken the statutory protection given to children.
The couple had married when the girl was 16 years and three months old, while the man was 28. They later lived together and the girl became pregnant. Her age came to light when she visited a government hospital during her pregnancy. She subsequently delivered a stillborn baby in June.
The girl told the Court that the marriage had taken place with the consent of both families and that she had not faced force or coercion. She had also earlier supported her husband's bail plea and sought his presence during her pregnancy.
The couple argued that under Muslim personal law, a Muslim girl who had attained puberty could marry and that the validity of their marriage meant the subsequent sexual relationship could not attract criminal liability.
The High Court rejected this argument, saying that the validity of a marriage and the criminal consequences of sexual intercourse with a minor are separate issues.
The Court observed that a person who was below 18 years of age does not become an adult merely because a marriage takes place.
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It said that accepting the argument would effectively create a marital exception under the POCSO Act for children, even though Parliament had not provided such an exception.
The Court also noted that the girl's statement that the relationship was voluntary deserved to be heard with seriousness and dignity. However, it held that consent given by a person below 18 does not take the sexual relationship outside the scope of POCSO and the Bharatiya Nyaya Sanhita (BNS).