In a significant verdict on the interaction between personal law and statutory child protection frameworks, the High Court of Delhi, presided over by Justice Sanjeev Narula, has held that a marriage solemnised under Muslim personal law does not confer immunity upon an adult husband from criminal liability under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Bharatiya Nyaya Sanhita, 2023 (BNS), for having sexual relations with a minor wife. Dismissing a writ petition that sought the quashing of an FIR, the Court ruled that Parliament has fixed eighteen years as the uniform age below which consent to sexual activity carries no legal efficacy, and this statutory threshold cannot be overridden by personal law, asserted marital validity, or family consent.
Background of the Case
The case involved a couple who contracted a nikah on 20th December, 2024. At the time of the marriage, the girl (Petitioner No. 2) was sixteen years and three months old, having been born on 19th September, 2008. The husband (Petitioner No. 1), born on 1st January, 1997, was nearly twenty-eight years old. The couple resided together thereafter, and by May 2026, the girl was approximately eight months pregnant.
Her minor age came to the knowledge of authorities when she visited a government hospital for pregnancy-related medical care. Hospital authorities alerted the police, who obtained her school records verifying her date of birth and registered FIR No. 189/2026 at Police Station Darya Ganj under Section 64(1) of the BNS and Section 6 of the POCSO Act.
The registration of the case did not arise from any complaint made by the girl. Throughout the proceedings—including statements made to police, her statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and during an interaction via video conference from the hospital labour room before the Special Judge on 5th June, 2026—she consistently affirmed that she married Petitioner No. 1 voluntarily, with the consent of both families, and denied being subjected to force or undue influence.
Tragically, the foetus died in utero, and she delivered a stillborn child on 6th June, 2026. The Sub-Divisional Magistrate subsequently ordered an exhumation under Section 196(4) of the BNSS for DNA profiling to establish paternity. The petitioners approached the High Court invoking its writ jurisdiction to quash the FIR, seeking disciplinary proceedings against the investigating police officers, and claiming compensation for alleged false implication and harassment.
Arguments of the Parties
The petitioners argued that Petitioner No. 2, having attained puberty before the nikah, was competent to contract marriage under Muslim personal law. They placed reliance on Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, and Mulla’s Principles of Mahomedan Law, which presumes puberty upon the completion of fifteen years in the absence of evidence. The petitioners contended that because the marriage was legally valid under personal law, subsequent cohabitation and physical intimacy could not attract criminal culpability under secular penal statutes.
To support their contentions, the petitioners cited decisions of the Punjab and Haryana High Court in Yunus Khan v. State of Haryana, Gulam Deen v. State of Punjab, and Javed v. State of Haryana, as well as the Full Bench decision of the Delhi High Court in Court on its Own Motion (Lajja Devi) v. State. They argued that Gulam Deen and Javed stood affirmed because challenges brought by the National Commission for Protection of Child Rights (NCPCR) and the National Commission for Women (NCW) were dismissed by the Supreme Court on 19th August, 2025. They also invoked their fundamental rights under Articles 21, 25, and 26 of the Constitution, emphasizing that the girl had never alleged force and that both families had consented to the union.
The Court’s Analysis
Justice Narula separated the civil status of the marriage from the penal consequences of the sexual act. The Court held that even assuming the validity of the nikah under personal law, personal law cannot carve out an exception to a penal statute where Parliament has enacted none:
“Personal law may determine whether a marriage has been contracted and the civil consequences that follow. It cannot supply an exception to a criminal law where Parliament has provided none.”
The Court noted that POCSO defines a child under Section 2(1)(d) as any person below eighteen, penalizes penetrative sexual assault irrespective of consent, and contains Section 42-A, which gives the Act overriding effect over any inconsistent law. Similarly, Section 63 of the BNS criminalizes sexual intercourse with a woman below eighteen as rape, with or without consent, and specifically confines the marital exception to instances where the wife is not under eighteen. The Court observed:
“The Court cannot therefore substitute ‘puberty’ for the age of eighteen fixed by POCSO and the BNS. Nor can the statutory line be redrawn through a case-specific assessment of whether a child of sixteen appeared mature enough to understand the relationship.”
Relying on the Supreme Court’s landmark ruling in Independent Thought v. Union of India, which confined the marital rape exception under the Indian Penal Code to wives aged eighteen or above, the Court observed that marriage does not diminish the protection guaranteed by penal law:
“A marriage ceremony does not move a child into a lesser category of protection.”
The Court also referred to the three-Judge Bench decision of the Supreme Court in Society for Enlightenment and Voluntary Action v. Union of India, which held that child marriage directly threatens the principles underlying POCSO and that a husband having sexual intercourse with a minor wife is liable under the enactment. Addressing the physiological and legal status of the minor, Justice Narula observed:
“Put simply, marriage does not advance a child’s age. A person who is sixteen before the ceremony remains sixteen afterwards. For POCSO and Section 63 BNS, that fact is determinative of the legal capacity to consent to the sexual act.”
Analyzing the precedents cited by the petitioners:
- Yunus Khan, Gulam Deen, and Javed were distinguished as cases arising from habeas corpus or protection petitions, none of which adjudicated a prayer to quash a POCSO prosecution.
- The Supreme Court’s dismissal of the NCPCR challenge in Gulaam Deen was made strictly for want of locus and did not endorse the underlying reasoning or constitute a declaration of law under Article 141 of the Constitution.
- Lajja Devi was delivered when the statutory age of consent under the Indian Penal Code was sixteen and the marital exception applied above fifteen; that threshold has since been statutorily elevated to eighteen under POCSO and BNS.
The Court reviewed contrasting High Court judgments, noting decisions from Karnataka (Aleem Pasha v. State of Karnataka), Kerala (Khaledur Rahman v. State of Kerala and Abdul Khader v. State of Kerala), Punjab and Haryana (Wahid v. State of Punjab), Allahabad (Rubi v. State of U.P.), and Delhi (Mohd. Amaan Malik v. State (NCT of Delhi) and Hamid Raza v. State (NCT of Delhi)), which established that child protection statutes prevail over personal law.
The Court further distinguished its recent ruling in Harmeet Singh v. State of GNCTD, where proceedings were quashed on exceptional facts involving parties aged seventeen and twenty-two, an eight-month-old infant requiring parental care, and no objection from the State. In contrast, the present case involved a substantial age disparity (sixteen and twenty-eight), no surviving infant, and a broad plea for substantive immunity under personal law. Decisions where the Supreme Court exercised powers under Article 142 (K. Dhandapani v. State and K. Kirubakaran v. State of Tamil Nadu) or warned against settling child-protection offences (Ramji Lal Bairwa v. State of Rajasthan) were also examined, alongside Delhi High Court precedents (Prince Kumar Sharma v. State, Prasanjeet Mandal v. State, and Aman Gupta v. State) affirming that subsequent marriage does not erase a completed statutory offence.
Addressing the minor’s consent and family approval, the Court observed:
“The Court must respect her account of her own circumstances. But there is a difference between respecting her present wishes and treating those wishes as a private power to waive a public penal statute. POCSO does not confer such a power upon the child, her parents, or the Court.”
The Court also rejected the argument that the FIR was unauthorized because no complaint had been filed by the family, noting that Section 19 of POCSO makes reporting mandatory for institutions such as hospitals, with penal consequences for failure to report under Section 21.
Finally, the Court turned down the arguments based on Articles 21, 25, and 26 of the Constitution and Section 2 of the Shariat Act, holding that constitutional protection of personal choice and religious freedom cannot be read as granting immunity from general penal laws enacted to protect children.
The Decision
Holding that the allegations disclose the commission of a cognizable offence, the Delhi High Court dismissed the writ petition and refused to quash FIR No. 189/2026. The Court also declined the prayers for initiating disciplinary proceedings against the police officers and for grant of compensation, observing that while the grief over the stillbirth was undeniable, sympathy could not render the statutory registration of an offence unlawful.
The Court clarified that its observations are confined strictly to the quashing petition and do not constitute findings on the guilt of Petitioner No. 1, which the Trial Court must determine on evidence in accordance with law. The Court also affirmed that the order dated 5th June, 2026, granting bail to Petitioner No. 1, remains unaffected.
Case Title: Bilal & Anr. v. The State Govt of NCT of Delhi Through SHO & Ors.
Case No.: W.P.(CRL) 2976/2026 & CRL.M.A. 29702/2026
Bench: Justice Sanjeev Narula
Date: 23rd September, 2026
