Delhi High Court: Personal Marriage Law Cannot Override the POCSO Act
The Delhi High Court refused to cancel a police case (FIR) against a man accused of an offence under the Protection of Children from Sexual Offences (POCSO) Act, even though the man and the girl involved were married under Muslim personal law.
The girl was 16 years and 3 months old at the time of the December 2024 marriage, and the man was about 28 years old.
The Court held that a marriage conducted under personal (religious) law cannot be used to escape the protection POCSO gives to every child below the age of 18, regardless of the child's religion or the customs of their community.
The Court rejected the argument that a girl who has reached puberty can be treated as capable of consenting to sex or marriage; it said the law fixes 18 years as the age of consent and this cannot be replaced by a biological test like puberty.
The case was filed under Section 64(1) of the Bharatiya Nyaya Sanhita (BNS), India's new criminal code, along with Section 6 of the POCSO Act, which deals with aggravated penetrative sexual assault.
Protection of Children from Sexual Offences (POCSO) Act, 2012
The Protection of Children from Sexual Offences Act, usually called the POCSO Act, is a special Indian law made only to protect children from sexual abuse and exploitation. It treats every person below 18 years of age as a "child" and says a child cannot legally consent to any sexual act, no matter what the child says or what any other law or custom claims.
This case is a direct application of Section 42A: the Delhi High Court held that even though the girl was "married" under Muslim personal law, this marriage cannot be used to escape POCSO's protection, because she was 16 years and 3 months old, below the Act's fixed age of consent of 18.
Prohibition of Child Marriage Act, 2006: Minimum Age of Marriage
The Prohibition of Child Marriage Act (PCMA), 2006 is the main Indian law that sets the minimum legal age for marriage and punishes those who arrange, perform, or take part in a marriage below that age. It fixes 18 years as the minimum age for a girl and 21 years for a boy.
The marriage in this case, involving a 16-year-old girl, would itself be a child marriage under the PCMA, but the specific court order in this news focused on the POCSO charge; the two laws work together, since a marriage below the legal age can be both a PCMA violation and, if it involves sexual activity, a POCSO offence.
The Marital Rape Exception: Exception 2 to Section 63 of the BNS
Indian criminal law has long had a special exception that excludes a husband from being prosecuted for rape of his own wife, as long as the wife is above a certain age. This is called the "marital rape exception". Under the earlier Indian Penal Code (IPC), this was Exception 2 to Section 375; under India's new criminal code, the Bharatiya Nyaya Sanhita (BNS), 2023, the equivalent provision is Exception 2 to Section 63.
Because the girl in this case was 16, below both the POCSO age of consent and the age up to which the Supreme Court already struck down the marital exception in 2017, the Delhi High Court's refusal to quash the FIR is consistent with settled law: for a wife below 18, there is no marital exception available at all, whether under BNS Section 63 or the earlier IPC Section 375.
- The girl was 16 years and 3 months old at the time of her December 2024 marriage; the man was about 28.
- The case involves Section 64(1) of the Bharatiya Nyaya Sanhita (BNS) and Section 6 of the POCSO Act (aggravated penetrative sexual assault, minimum 20 years).
- POCSO Act, 2012 fixes 18 years as the age below which a person is a "child" and cannot legally consent to sexual activity (Section 2(1)(d)).
- The Prohibition of Child Marriage Act, 2006 fixes the minimum marriage age at 18 for girls and 21 for boys.
- Independent Thought v. Union of India (2017) struck down the marital rape exception for wives aged 15 to 18.
- The marital rape exception for wives aged 18 and above remains pending before the Supreme Court as of September 2026.