New Delhi, Sep 27 : A marriage claimed to be valid under Muslim personal law cannot confer immunity from penal law for establishing physical relations with a minor wife, the Delhi High Court has held.
The high court said the POCSO framework would be substantially weakened if an adult could answer a prosecution concerning a girl below the age of 18 simply by producing a marriage certificate recognised by personal law.
“The statutory protection would then depend not upon the age of the child, but upon whether a marriage had been arranged before the sexual relationship was discovered. That would turn the legislation on its head,” Justice Sanjeev Narula said in a September 23 order.
The court’s observations came while refusing to quash a criminal case registered against a man for allegedly sexually assaulting a minor, his wife.
The couple got married when the girl was 16 years and three months old and the man was 28 years old. They subsequently lived together and the girl became pregnant. Her age came to light when she visited a government hospital during her pregnancy.
The girl, unfortunately, delivered a stillborn baby in June.
A case was lodged against the man under the Protection of Children from Sexual Offences (POCSO) Act when the matter was reported to police by the hospital authorities.
The girl maintained that the marriage took place with the consent of both families and that she had not been subjected to force or coercion. She also supported the man’s bail application earlier and sought his presence during her pregnancy.
In their plea, the couple argued that under the Muslim personal law, a Muslim girl who had attained puberty was competent to marry and that the validity of the marriage meant that the subsequent sexual relationship could not attract criminal liability.
The court, however, said the proposition that a marriage under the Muslim personal law itself removes the criminality of the subsequent sexual relationship cannot be accepted.
“To quash the FIR merely because the parties describe themselves as married and petitioner no. 2 (girl) supports petitioner no. 1 (man) would effectively introduce a marital exception into the POCSO Act for a category of children for whom Parliament has consciously provided none,” it said.
It added that a marriage does not advance a child’s age and a person aged 16 before the ceremony remains the same age afterwards.
The court drew a distinction between the civil validity of a marriage and the criminal consequences of sexual intercourse with a minor.
It held that even if the marriage was assumed to be valid under the Muslim personal law, it could not create an exception to the POCSO Act or the Bharatiya Nyaya Sanhita (BNS).
“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 BNS for sexual intercourse with a wife who was below 18 at the relevant time. Any other view would create, through judicial decision, an exception which Parliament has expressly excluded,” Justice Narula said.
The court said it was not unmindful of the girl’s position and noted that she submitted that she chose the marriage, continues to stand by her husband and did not regard herself as having been wronged by him.
“Her statement deserves to be heard with seriousness and dignity. But the question before us is not whether the court believes her when she says that the relationship was voluntary. We may proceed on the footing that it was.
“The question is whether her consent, given when she was below 18, and the nikah said to have preceded the sexual relationship, take the case outside POCSO and the BNS. They do not,” it said.
