Context
The Delhi High Court has held that a marriage recognised under Muslim personal law cannot provide immunity from prosecution under the POCSO Act or Bharatiya Nyaya Sanhita (BNS) for sexual intercourse with a wife below 18 years.
Explanation
- Personal laws govern family matters such as marriage, divorce, maintenance, adoption, guardianship, inheritance and succession, often based on religious communities.
- They may recognise community-specific rules and customs regarding marriage and its civil consequences.
- Such recognition is not a general immunity from criminal law; exemptions must arise from the applicable statute itself.
- POCSO Act, 2012 is a special child-protection law and defines a child as any person below 18 years. For POCSO, a minor’s consent cannot legalise an otherwise prohibited sexual act.
- Crucially, POCSO contains no marital exception for sexual offences against children. The BNS also fixes 18 years as the relevant threshold and does not extend its marital exception where the wife is below 18.
- Hence, even an otherwise recognised marriage cannot create an exemption that Parliament has not provided.
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