No personal law immunity from Pocso case for sex with minor wife: Delhi HC

The Delhi High Court has ruled that personal laws cannot serve as a shield from criminal liability under the Protection of Children from Sexual Offences (POCSO) Act and the Bharatiya Nyaya Sanhita (BNS) when it comes to sexual relations with an underage wife. The court held that personal law may determine the validity of a marriage and the subsequent civil consequences, but it cannot override criminal law provisions when no such immunity has been granted by Parliament.

The case involved a Muslim man accused of having sexual relations with his underage wife. The husband and wife sought to have the criminal case dismissed, arguing that they were validly married under Muslim personal law. However, the court observed that even if a marriage is deemed valid under personal law, it does not grant immunity from criminal liability for acts prohibited by secular penal statutes like the POCOS Act and BNS.

Justice Sanjeev Narula, who delivered the order on September 23, clarified that a woman who was under 18 at the time of the alleged sexual relationship could not use her marriage as a defense against criminal prosecution. The court emphasized that the age of consent under the POCOS Act and BNS is 18, and this threshold cannot be overridden simply by producing a marriage ceremony recognized by personal law.

The court also noted that if the statutory protection were weakened in this manner, it would undermine the effectiveness of the POCSO framework and give adults an easy way out of criminal liability by merely claiming a valid personal law marriage. The decision underscores the importance of upholding the statutory protections for children, even in cases where personal laws may have recognized the marriage.