Delhi High Court: Marriage Under Personal Law Is No Defence to POCSO Charges Involving a Minor
The Delhi High Court refused to cancel (quash) a criminal case against a 28-year-old man who had married a girl aged 16 years and 3 months under Muslim personal law in December 2024. Justice Sanjeev Narula gave the ruling in September 2026 and dismissed the couple's petition.
The girl became pregnant. Her age came to light when she went to a government hospital, and the hospital informed the police, as the POCSO Act requires. An FIR (First Information Report, the first official record of a crime) was filed in May 2026 under Section 6 of the POCSO Act and Section 64(1) of the Bharatiya Nyaya Sanhita (BNS), which deals with rape.
The couple argued that the marriage was valid under personal law, which links a girl's capacity to marry to puberty, and that the girl had consented and her family supported the marriage.
The court held that a marriage valid under personal law cannot, by that fact alone, give immunity from POCSO or the BNS for sexual relations with a wife below 18. The legal age line of 18 cannot be replaced by a case-by-case check of whether a girl "appeared mature".
The court said the POCSO framework would be badly weakened if an adult could defend a case simply by showing a marriage certificate recognised by personal law. Protection would then depend on whether a marriage was arranged, not on the child's age.
It also noted that POCSO's overriding clause (Section 42A) prevails over conflicting laws, and that the 1937 Shariat Act's "notwithstanding" clause overrides custom, not later criminal laws. The Kerala High Court took a similar view in a ruling in September 2026.
Protection of Children from Sexual Offences (POCSO) Act, 2012
The POCSO Act, 2012 is a special law that protects children from sexual abuse and exploitation. It treats every person below 18 years as a "child". Because of this, a child's consent has no legal value: any sexual act with a person under 18 is an offence under the Act, whatever the child says. The law is gender-neutral and sets up child-friendly procedures and Special Courts for trials.
The court relied on POCSO's fixed age line of 18 and its overriding clause (Section 42A) to hold that a personal-law marriage does not remove criminal liability. The case also began because the hospital followed POCSO's mandatory reporting duty under Section 19.
Prohibition of Child Marriage Act, 2006: Minimum Age of Marriage
The Prohibition of Child Marriage Act (PCMA), 2006 is the main law that sets the minimum legal age for marriage in India and punishes those who arrange or take part in child marriages. It fixes 18 years for women and 21 years for men. It applies to all Indians, but whether it overrides personal laws on marriage has been argued before several High Courts and is not yet finally settled by the Supreme Court.
Even where a marriage is argued to be valid under personal law, the Delhi High Court separated the question of the marriage's validity from criminal liability for sexual acts with a child. Under POCSO and the BNS, what matters is the girl's age, not the status of the marriage.
Muslim Personal Law (Shariat) Application Act, 1937
The Muslim Personal Law (Shariat) Application Act, 1937 is a short law that says Muslim personal law (Shariat), not local custom, will govern certain family matters for Muslims in India. These include marriage, divorce, maintenance, inheritance and related matters. Under this personal law, the capacity to marry is traditionally linked to attaining puberty, which courts have often presumed to be 15 years in the absence of other proof.
The couple relied on Section 2 of the 1937 Act. The Delhi High Court held that its non-obstante ("notwithstanding") clause works against custom, not against modern penal laws like POCSO and the BNS, so it gives no immunity from prosecution.
- Court: Delhi High Court, Justice Sanjeev Narula; September 2026; petition to quash FIR dismissed
- Girl's age at marriage: 16 years 3 months; man's age: about 28; marriage in December 2024; FIR in May 2026
- Charges: Section 6 of the POCSO Act and Section 64(1) of the BNS
- POCSO: child = below 18 (Section 2(1)(d)); overriding effect (Section 42A); mandatory reporting (Section 19)
- Section 6 POCSO: minimum 20 years' rigorous imprisonment since the 2019 amendment
- BNS Exception 2 to Section 63: marital exception only when the wife is not under 18
- Independent Thought v. Union of India: 2017
- PCMA, 2006: 18 (women) and 21 (men); child marriage voidable (Section 3); Section 9 punishment up to 2 years or ₹1 lakh fine
- Society for Enlightenment and Voluntary Action v. Union of India: 18 October 2024
- Muslim Personal Law (Shariat) Application Act: 1937; Section 2