Marriage No Shield Against POCSO Prosecution: Delhi HC

The court said the Protection of Children from Sexual Offences (POCSO) Act would be substantially weakened if an adult could counter prosecution involving a minor simply by producing a marriage certificate recognised under 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 recent order.

The court made the observations while refusing to quash a criminal case against a man accused of sexually assaulting his minor wife.

The girl was 16 years and three months old and the man was 28 when they married. They subsequently lived together, and she became pregnant. Her age came to light during a visit to a government hospital. She delivered a stillborn baby in June.

Hospital authorities reported the matter to police, following which a case was registered against the man under the POCSO Act.

The girl maintained that both families had consented to the marriage and that she had not faced force or coercion. She had also supported the man’s bail application and sought his presence during her pregnancy.

In their plea, the couple argued that a Muslim girl who had attained puberty was competent to marry under Muslim personal law. They contended that the marriage’s validity meant the subsequent sexual relationship could not attract criminal liability.

The court rejected the contention that marriage under personal law removed the criminality of a subsequent sexual relationship with a minor.

“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.

The court said marriage did not advance a child’s age: a person aged 16 before the ceremony remained the same age afterwards. It distinguished the civil validity of a marriage from the criminal consequences of sexual intercourse with a minor.

Even if the marriage were assumed to be valid under Muslim personal law, it could not create an exception to the POCSO Act or the Bharatiya Nyaya Sanhita (BNS), the court held.

“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 acknowledged the girl’s position that she had chosen the marriage, continued to stand by her husband and did not consider herself 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,” the judge said.