In a significant ruling affirming child protection laws over personal law claims, the Kerala High Court has held that sexual intercourse with a girl below the age of 18 years attracts the offences under the Protection of Children from Sexual Offences (POCSO) Act as well as rape under Section 376 of the Indian Penal Code (IPC), irrespective of whether the victim is married to the accused under Muslim personal law. Dismissing a petition filed by an accused seeking to quash criminal proceedings, Justice Jobin Sebastian ruled that neither personal law nor Exception 2 to Section 375 of the IPC can exonerate a husband from prosecution for having sexual relations with a minor wife.
Background of the Case
The case arose from Crime No. 461 of 2022 registered at Mannarkkad Police Station, now pending as S.C. No. 779 of 2023 before the Fast Track Special Court, Pattambi. The petitioner, who was 27 years old, was charged as the primary accused under Sections 366 and 376(2)(n) of the IPC, alongside Sections 6(1) read with 5(1) and 15(1) of the POCSO Act.
According to the First Information Statement (FIS), on October 23, 2021, the accused enticed the victim girl—who was 17 years and one month old at the time—into a car under the pretext of buying her clothes and took her to his house at Thottara. When the girl expressed a wish to sleep in the mother’s room, the accused’s parents allegedly locked her inside the accused’s bedroom from the outside. The accused allegedly engaged in forceful sexual intercourse with her that night and repeated the act over the subsequent four days.
The petitioner approached the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking to quash the final report and all further proceedings.
Arguments of the Parties
Counsel appearing for the petitioner contended that the criminal proceedings constituted an abuse of the process of law. It was argued that the victim was the petitioner’s legally wedded wife, married on July 23, 2021, according to Islamic religious rites in the presence of both families, a fact acknowledged in statements given to the police by the victim, her brother, and the local Khazi. The petitioner placed reliance on Exception 2 to Section 375 of the IPC, submitting that sexual intercourse by a man with his own wife, if she is not under 15 years of age, does not amount to rape.
Opposing the plea, counsel for the de facto complainant and the Senior Public Prosecutor submitted that the victim was undisputedly 17 years old at the time of the incident, falling squarely within the definition of a “child” under Section 2(1)(d) of the POCSO Act. They maintained that repeated sexual intercourse with a minor constitutes aggravated penetrative sexual assault under Section 6 of the POCSO Act as well as rape under Section 376 of the IPC, and that the allegations in the FIS prima facie established the ingredients of the offences.
The Court’s Analysis
Addressing the scope of inherent powers under Section 528 of the BNSS, the High Court reiterated that such jurisdiction must be exercised sparingly and cautiously, and not to conduct a meticulous assessment of evidence or hold a mini-trial at a nascent stage. On a plain reading, the FIS disclosed the essential ingredients of the offences.
The Court observed that whether a valid marriage had been solemnized remained a matter for trial since no documentary evidence was produced. However, the Court clarified that even if a valid marriage had taken place under Muslim personal law, it would not salvage the petitioner’s criminal liability.
Highlighting that the POCSO Act prevails over personal and customary laws, the Court cited its earlier decision in Khaledur Rahman v. State of Kerala and Another [2022 KHC Online 913]:
“The POCSO Act is a special statute enacted specifically for the protection of children from sexual offences. Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statute and, in the absence of any specific exclusion of customary or personal law from statutory provisions, Statute will prevail, and personal law or customary law shall stand abrogated to the extent of the inconsistency.”
The Court underscored that under Section 2(1)(d) of the POCSO Act, a child is any person below eighteen years, and Section 42A gives overriding effect to the statute. Therefore, whether the child is the wife of the accused or not is of little consequence under the POCSO Act.
Regarding the petitioner’s reliance on Exception 2 to Section 375 of the IPC, the Court pointed out that the Supreme Court of India in Independent Thought v. Union of India and Another [(2017) 10 SCC 800] read down the Exception. The Supreme Court had ruled that treating marital intercourse with a girl between 15 and 18 years as non-rape was unconstitutional and held that sexual intercourse by a man with his wife is not rape only if she is not under eighteen years of age. Consequently, a person engaging in sexual intercourse with a girl under 18 years remains liable under Section 376 IPC regardless of marital status.
Decision
Holding that the allegations in the final report prima facie disclose the commission of the offences, the High Court found no ground to exercise its inherent jurisdiction. The petition was accordingly dismissed, with the Court clarifying that its observations were confined strictly to deciding the quashing petition and would not influence the trial court on merits.
Case Details
Case Title: XXXXX v. XXXXX and Others
Case No.: Crl.M.C. No. 8899 of 2024
Bench: Justice Jobin Sebastian
Date: August 19, 2026
