Can a marriage said to be valid under Muslim personal law shield a husband from prosecution for sexual intercourse with a wife below eighteen? In Bilal & Anr. v. State (Govt. of NCT of Delhi) & Ors. (W.P.(CRL) 2976/2026, decided 23 September 2026), the Delhi High Court answered no, declining to quash an FIR under Section 64(1) of the BNS, 2023 and Section 6 of the POCSO Act: “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 facts
A sixteen-year-old girl was married to a 28-year-old man under Muslim personal law, with the consent of her family. The couple lived together and the girl became pregnant. Her minority came to light during a hospital visit, leading to FIR No. 189/2026 at P.S. Darya Ganj under Section 64(1) of the Bharatiya Nyaya Sanhita, 2023 and Section 6 of the POCSO Act, 2012. Throughout, the girl maintained that she had married of her own volition and without coercion.
The husband and the girl approached the High Court under its writ jurisdiction seeking quashing of the FIR, relying on the marriage’s validity under personal law, along with ancillary prayers.
The Court’s analysis
Justice Sanjeev Narula held that a marriage claimed to be valid under Muslim personal law cannot confer immunity from POCSO or the BNS for intercourse with a wife below eighteen. The argument from attainment of puberty was rejected: the statutory age of eighteen is a bright-line rule that does not bend to individual maturity assessments. Marriage, the Court observed, does not advance a child’s age for the purposes of the Act.
The petition was dismissed. The Court declined the prayers for disciplinary action against police officials and for compensation, continued the interim bail order of 5 June 2026, and directed the trial court to proceed on the evidence uninfluenced by the observations in the judgment.
The statutory architecture
| Provision | Effect |
|---|---|
| POCSO Act, Section 2(1)(d) | “Child” means any person below eighteen years — no marital carve-out |
| POCSO Act, Section 6 | Punishment for aggravated penetrative sexual assault |
| POCSO Act, Section 42-A | Act has overriding effect over other laws to the extent of inconsistency |
| BNS, Section 63 (Exception 2) | The marital exception to rape applies only where the wife is not below eighteen |
| BNS, Section 64(1) | Punishment for rape — the provision invoked in the FIR |
What practitioners should take from it
Quashing petitions built on the civil validity of an underage marriage face a structural problem after this line of reasoning: the validity question and the criminality question run on separate tracks. Defence strategy in such cases tends to shift to the factual terrain — proof of age, the date of the alleged acts, and the evidentiary record — and to bail, where the relationship’s consensual character and the family context may still weigh with the court, as the continued interim protection in this very case shows. For families, the decision is also a caution that solemnising a minor’s marriage exposes participants to consequences under the Prohibition of Child Marriage Act, 2006 in addition to the penal statutes.
The judgment aligns Delhi practice with the position that special child-protection legislation prevails over personal law across communities. It does not decide the separate and pending constitutional questions about the status of child marriages generally; it decides only that prosecution under POCSO and the BNS cannot be stopped by pleading the marriage.
Frequently Asked Questions
Does a valid marriage under personal law prevent a POCSO prosecution?
No. POCSO defines a child as any person below eighteen and contains no marriage exception. The Delhi High Court has held that the civil validity of a marriage under personal law is a separate question from criminal liability, and the special statute operates with overriding effect under Section 42-A.
Is consent of the minor girl relevant?
Not to the offence. Under the POCSO Act and under Section 63 of the BNS (which treats intercourse with a woman under eighteen as rape notwithstanding marriage, following the Supreme Court's reading-down of the marital exception for minor wives), a minor's consent has no legal effect. It may be considered later at stages such as sentencing or bail, but it does not erase the offence.
What about attainment of puberty under Islamic law?
The Court rejected the argument that puberty-based capacity to marry creates a criminal-law defence. Statutory age thresholds operate as bright-line rules; individual maturity or religious capacity to contract marriage does not move the line Parliament has fixed at eighteen.
Does refusal to quash mean the accused is guilty?
No. Quashing proceedings test only whether the FIR, taken at its highest, discloses an offence. The Court expressly left the trial court to proceed on the evidence, uninfluenced by its observations, and the interim bail arrangement already in place was continued.