W.P.(CRL) 2976/2026 Page 1 of 23

$~76

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 23

rd

September, 2026

# CNR No. DLHC010455342026

+ W.P.(CRL) 2976/2026 & CRL.M.A. 29702/2026

BILAL & ANR. .....Petitioners

Through: Mr. Avnish Singh, Mr. Mahendra

Vikram Singh and Mr. Suraj Sharma,

Advocates with P-1 (in-Person).

versus

THE STATE GOVT OF NCT OF DELHI THROUGH SHO & ORS.

.....Respondents

Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.

Sangeet Sibou, Ms. Priya Rai, Ms.

Neha Ghugtyal, Mr. Ajay Jangra, Mr.

Avinash Kumar Singh and Mr.

Priyansh Raj Singh, Advocates for

State.

SI Yamini Vats, P.S. Daryaganj with

Complainant (in-Person).

CORAM:

HON’BLE MR. JUSTICE SANJEEV NARULA

JUDGMENT

SANJEEV NARULA, J. (Oral):

1. This case lies at the intersection of personal choice and the protective

mandate of the law. The Petitioners say that they married of their own

volition and with the consent of both families. Petitioner No. 2 has

consistently maintained that she was neither compelled to marry Petitioner

W.P.(CRL) 2976/2026 Page 2 of 23

No. 1 nor subjected to any forcible sexual relationship thereafter. Yet, at the

time of the marriage, she was just over sixteen years of age and, being below

eighteen, remained a child in the eyes of law. That fact brings into play a

statutory regime whose concern is not merely with the voluntariness of a

relationship, but with the protection of children from sexual exploitation and

the consequences of child marriage. The question, therefore, is whether

consent and the asserted validity of the marriage can displace that protective

framework where the law itself fixes eighteen as the age below which

consent to sexual activity has no legal efficacy.

2. The material facts, not in dispute, are as follows: Petitioner No. 2 was

born on 19

th

September, 2008. She married Petitioner No. 1 on 20

th

December, 2024, when she was sixteen years and three months old.

Petitioner No. 1, born on 1

st

January, 1997, was then nearly twenty-eight.

The couple thereafter lived together. By May 2026, Petitioner No. 2 was

about eight months pregnant. Her age came to the attention of the authorities

when she visited a Government hospital for treatment during the pregnancy.

3. The FIR did not originate from any accusation made by Petitioner No.

2. Her statement, as recorded by the police, is that the marriage took place

with the consent of the two families; that she thereafter lived with Petitioner

No. 1; and that physical relations commenced after the marriage. The police,

having obtained her school record showing her date of birth as 19

th

September, 2008 registered FIR No. 189/2026 at P.S. Darya Ganj under

Section 64(1) of the Bharatiya Nyaya Sanhita, 2023

1

and Section 6 of the

Protection of Children from Sexual Offences Act, 2012

2

.

1

“BNS”

2

“POCSO Act”

W.P.(CRL) 2976/2026 Page 3 of 23

4. Her position has remained consistent. The petition records that when

she was questioned at the hospital on 23

rd

and 27

th

May, 2026, she

maintained that she had married of her own free will and was residing

happily with Petitioner No. 1. Her statement under Section 183 of the

Bharatiya Nagarik Suraksha Sanhita, 2023

3

also contains no allegation of

force. When Petitioner No. 1’s application for bail was considered on 5

th

June, 2026, Petitioner No. 2 appeared through video conferencing from the

labour room and stated that she did not oppose his release and wanted him

by her side. The Special Judge interacted with her and recorded that she

denied being under fear or undue influence.

5. The circumstances which followed were unfortunate. The foetus died

in utero and Petitioner No. 2 delivered a stillborn child on 6

th

June, 2026. An

order was thereafter obtained from the Sub-Divisional Magistrate for

exhumation of the child for DNA profiling and collection of evidence.

6. The Petitioners have approached this Court seeking quashing of the

FIR, disciplinary proceedings against the police officers concerned, and

compensation for the alleged false implication and harassment suffered by

them.

The Petitioners’ case

7. The principal submission is founded upon Muslim personal law.

Reliance is placed upon Section 2 of the Muslim Personal Law (Shariat)

Application Act, 1937 and upon the principle stated in Mulla’s Principles of

Mahomedan Law that a Muslim of sound mind who has attained puberty is

competent to contract marriage, puberty being presumed, in the absence of

evidence, upon completion of fifteen years.

3

“BNSS”

W.P.(CRL) 2976/2026 Page 4 of 23

8. The Petitioners carry this submission a step further. They say that

Petitioner No. 2 had attained puberty before the nikah on 20

th

December,

2024 and was therefore competent to marry under Muslim personal law.

From the asserted validity of the marriage, they seek to derive immunity for

the sexual relationship that followed. Ground I puts the argument plainly:

once the marriage is recognised in law, the subsequent cohabitation,

including the physical relationship between the parties, cannot attract

criminal liability.

9. To support this proposition, the Petitioners rely principally on Yunus

Khan v. State of Haryana

4

, Gulam Deen v. State of Punjab

5

, Javed v. State

of Haryana

6

, and the Full Bench decision of this Court in Court on its Own

Motion (Lajja Devi) v. State

7

. They also contend that Gulam Deen and

Javed stand affirmed because the Supreme Court dismissed the challenges

carried by the National Commission for Protection of Child Rights

8

and the

National Commission for Women

9

on 19

th

August, 2025. Whether that

procedural disposal bears the legal consequence attributed to it is considered

later.

10. The Petitioners also place considerable emphasis on the surrounding

circumstances: Petitioner No. 2 has never complained of force or coercion;

both families accepted the marriage; and she has continued to support

Petitioner No. 1 even after registration of the FIR. These facts are not

without significance. They bear upon her present welfare and explain why

4

2014 SCC OnLine P&H 3588

5

2022 SCC OnLine P&H 1485

6

CRWP-7426/2022 (P&HHC) decided on 30

th

September 2022

7

2012 SCC OnLine Del 3937

8

“NCPCR”

9

“NCW”

W.P.(CRL) 2976/2026 Page 5 of 23

the Petitioners seek to bring the prosecution to an end. But they cannot, by

themselves, determine whether the admitted sexual relationship falls outside

POCSO and the BNS. That question must be answered by the statutory

scheme.

The question that actually arises

11. The Petitioners’ argument brings together two distinct questions.

Keeping them separate is important.

12. One concerns the legal character and consequences of a nikah

solemnised by a Muslim girl who has attained puberty but is still below

eighteen. The other is whether that nikah, by itself, places subsequent sexual

intercourse beyond the reach of POCSO and BNS while she remains a child

under those statutes.

13. The first question need not be finally decided here. Even if the validity

of the nikah is assumed in the Petitioners’ favour, the second question must

still be answered by the penal statutes. 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.

14. That distinction is central to the case. A marriage may have

consequences for status, maintenance, legitimacy, residence and rights

between the parties. It does not necessarily immunise conduct that a secular

penal statute independently prohibits. The legal status of the relationship and

the criminal character of an act within it are separate questions.

The statutory scheme leaves little room for doubt

15. POCSO leaves little room for ambiguity. Section 2(1)(d) defines a

“child” as any person below eighteen. Section 3 makes penetrative sexual

W.P.(CRL) 2976/2026 Page 6 of 23

assault upon a child an offence; the child’s consent does not take the act

outside that provision. If any circumstance specified in Section 5 is present,

the offence is aggravated penetrative sexual assault, punishable under

Section 6. Section 42-A completes the scheme by giving POCSO overriding

effect, to the extent of any inconsistency, over every other law.

16. The same legislative choice now appears directly in the BNS. Section

63 treats sexual intercourse with a woman below eighteen as rape, with or

without her consent. More importantly for the argument advanced here, the

marital exception is available only where the wife is not under eighteen

years of age. Thus, even where the woman is the man’s wife, marriage itself

does not remove the offence if she is below eighteen. The BNS came into

force on 1

st

July, 2024; the acts alleged in this case occurred thereafter.

17. This is a deliberate legislative arrangement. POCSO fixes eighteen as

the threshold for sexual consent. The BNS fixes the same threshold and

expressly withholds the marital exception where the wife is below eighteen.

The Prohibition of Child Marriage Act, 2006

10

separately defines a female

below eighteen as a child and attaches penal consequences to an adult male

contracting a child marriage.

18. 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. The statute has

already drawn that line at eighteen. An age threshold will inevitably operate

with firmness in individual cases; that is the nature, and indeed the purpose,

of a bright-line rule. If its application were to turn instead on judicial

W.P.(CRL) 2976/2026 Page 7 of 23

impressions of maturity, family approval or subsequent conduct, the

protection would cease to be uniform and become contingent upon the

circumstances of each case.

19. None of this renders the adolescent’s voice irrelevant. Her views must

be heard and given due weight, consistently with her age and maturity, when

the Court considers questions of custody, residence, protection,

rehabilitation, bail and other measures concerning her welfare. They may

also bear upon the exercise of discretion at an appropriate later stage, where

the law permits. But they cannot alter the ingredients of the offence or create

a defence that POCSO and the BNS do not recognise.

Marriage does not diminish the protection of the penal law

20. The governing principle is settled by Independent Thought v. Union

of India

11

. The Supreme Court considered Exception 2 to Section 375 IPC

as it then stood, which excluded from rape, sexual intercourse by a husband

with his wife if she was not below fifteen. The Court read down the

exception and confined it to a wife who was eighteen or above. The result

was clear: sexual intercourse with a wife below eighteen remained within

the penal law, notwithstanding the marriage.

21. The decision militates against the premise underlying the Petitioners’

case: that marriage may dilute the protection which the criminal law accords

to a girl below eighteen. A marriage ceremony does not move a child into a

lesser category of protection.

22. The BNS now places that position in the statutory text. Section 63

fixes eighteen as the age of consent and confines the marital exception to a

10

“PCMA”

11

(2017) 10 SCC 800

W.P.(CRL) 2976/2026 Page 8 of 23

wife who is not below eighteen. There is therefore no textual basis for

treating a marriage recognised under personal law as reviving an immunity

which the present penal law expressly withholds.

The position after ‘Society for Enlightenment and Voluntary Action v. Union

of India’

23. Any remaining doubt is removed by Society for Enlightenment and

Voluntary Action v. Union of India

12

. While examining the legal

framework governing child marriage, a three-Judge Bench noted that

POCSO applies to every person below eighteen and that the BNS retains the

same age of consent. It further observed that child marriage directly

threatens the principles underlying POCSO and that a man who has sexual

intercourse with his minor wife is liable under that enactment.

24. The judgment is equally careful about the limits of that conclusion. It

noticed the conflicting views on whether the PCMA overrides personal law,

but left that wider question open because it had not been fully argued. The

Court thus did not settle the civil status of every child marriage under

personal law. It did, however, state the operation of POCSO within such a

marriage in unambiguous terms.

25. The distinction drawn here follows the same course. It is unnecessary

to decide whether the nikah is valid, void or voidable, or what civil

consequences may flow from it. Those questions may arise before the

appropriate forum. The narrower issue before us admits of a clear answer:

the existence of the marriage does not place sexual intercourse with a wife

below eighteen beyond POCSO. Independent Thought and Society for

Enlightenment leave no room for a contrary conclusion.

W.P.(CRL) 2976/2026 Page 9 of 23

The decisions relied upon by the Petitioners

26. Yunus Khan must be read in the setting in which it arose. The girl’s

father had filed a habeas corpus petition alleging her illegal detention. After

she was produced before the Court and placed in a protection home, she

sought release so that she could live with the person whom she stated she

had married. The immediate question before the Court was therefore

whether she should be released from the protection home and, if so, to

whose custody. In answering that question, however, the Court was required

to consider the validity of the nikah under Muslim law and the effect of the

Prohibition of Child Marriage Act, 2006.

13

27. The Court found that the girl had attained puberty and had voluntarily

left with and married the man. It held that the marriage was not void under

Section 12 of the PCMA, though it remained voidable at her instance under

Section 3. The Court also treated the nikah as valid under Muslim personal

law, but made that conclusion subject to any contrary determination by a

competent forum in appropriate proceedings.

28. Read fairly, Yunus Khan decides whether, in those circumstances, the

girl could be released from the protection home and permitted to reside with

the man she claimed as her husband. It does not decide that the marriage

immunised sexual intercourse with her from POCSO. No such prosecution

was before the Court, and that question did not arise for determination.

29. The same distinction applies to Gulam Deen and Javed. The former

arose from a petition seeking protection of life and liberty; the latter from

habeas corpus proceedings concerning a girl kept in a protection home.

12

2024 INSC 790

13

“PCMA”

W.P.(CRL) 2976/2026 Page 10 of 23

Neither case adjudicated a prayer to quash a POCSO prosecution on the

ground that a marriage recognised under Muslim personal law had

extinguished the offence.

30. Reliance on Javed requires an additional caution. On 13

th

January,

2023, while issuing notice in the NCPCR’s challenge and observing that an

important question of law arose, the Supreme Court directed that, pending

further orders, the judgment should not be relied upon as a precedent in any

other case.

31. The order dated 19

th

August 2025 does not bear the consequence

which the Petitioners seek to draw from it. In NCPCR v. Gulaam Deen,

14

the Supreme Court noted that the underlying proceedings were confined to

protection of life and liberty and dismissed the Commission’s challenge for

want of locus. The challenge arising from Javed was disposed of on the

same basis. The Court did not adjudicate whether personal law could

displace POCSO.

32. It would therefore be inaccurate to say that the Supreme Court

affirmed Gulam Deen or Javed on the proposition advanced here. A

dismissal for want of locus neither endorses the reasoning under challenge

nor converts it into a declaration of law under Article 141 of the

Constitution.

33. Lajja Devi calls for closer attention. The Petitioners rely on the Full

Bench decision to contend that proceedings for rape may be quashed where

a minor girl states that she voluntarily accompanied and married the

accused. The decision must, however, be read in the statutory setting in

which it was delivered. The Full Bench expressly excluded from the

W.P.(CRL) 2976/2026 Page 11 of 23

reference the status of a marriage under Muslim law. More importantly,

Section 375 IPC then fixed sixteen as the general age below which consent

was immaterial, while the marital exception applied where the wife was

above fifteen. Against that backdrop, the Court distinguished between a girl

below sixteen, whose consent could not support quashing, and one above

sixteen, whose voluntary account could be considered along with the

surrounding circumstances.

34. The Full Bench was equally clear that, where intercourse constituted

an offence because of the girl’s age, neither the marriage nor the personal

law of the parties altered the position. Its allowance for the girl’s consent to

be considered after sixteen followed from the age of consent then fixed by

the IPC. That threshold is now eighteen under POCSO and the BNS.

Properly understood, Lajja Devi therefore supports the governing principle:

the legal efficacy of consent follows the age prescribed by the penal statute,

not the age at which personal law may recognise capacity to marry.

The divergent High Court decisions

35. The High Courts have nevertheless taken differing approaches. In Fija

v. State (NCT of Delhi)

15

, while considering a petition for protection, this

Court referred to the competence of a Muslim girl who had attained puberty

to marry under her personal law. The case did not concern a prayer to quash

a POCSO prosecution. Those observations cannot be extended into a general

rule that sexual intercourse with a minor wife falls outside POCSO. Such a

proposition cannot be reconciled with Independent Thought or Society for

Enlightenment.

14

Special Leave to Appeal (Crl.) No(s). 10036/2022

15

2022 SCC OnLine Del 2527

W.P.(CRL) 2976/2026 Page 12 of 23

36. The distinction becomes clearer in Mohd. Amaan Malik v. State

(NCT of Delhi)

16

. That was a petition for quashing an FIR which included

Section 6 POCSO, and the accused advanced substantially the same

submission, that the parties were Muslims, the girl had crossed fifteen, and

Muslim personal law therefore excluded the operation of POCSO. The Court

noticed the conflicting authorities: Aleem Pasha v. State of Karnataka

17

and

Khaledur Rahman v. State of Kerala

18

on one side, and Fija, Gulam Deen

and Javed on the other. It also noticed the Supreme Court’s direction that

Javed should not meanwhile be relied upon as a precedent. The Court did

not finally resolve that conflict because, on the allegations before it, the

sexual acts preceded the marriage. It did, however, reject the argument that

the relationship could be treated as consensual for purposes of quashing,

holding that even if consent were assumed, the consent of a minor was of no

consequence for the sexual offence. Amaan Malik is therefore useful both

for identifying the controversy and for the narrower proposition which is

directly relevant here: the child’s willingness cannot by itself remove an act

from POCSO.

37. More recently, in Hamid Raza v. State (NCT of Delhi)

19

, this Court

reiterated in the context of bail that Muslim personal law cannot override

POCSO or the BNS. The civil validity of the claimed marriage was left

untouched. That, in the opinion of the Court, keeps the two legal questions

in their proper compartments.

38. The Kerala High Court has consistently taken the same view. In

16

2023 SCC OnLine Del 3870

17

2022 SCC OnLine Kar 1588

18

2022 SCC OnLine Ker 5833

19

2025:DHC:8643

W.P.(CRL) 2976/2026 Page 13 of 23

Khaledur Rahman, it held that a marriage under Muslim personal law is not

excluded from POCSO and that, where one party is a minor, the Act applies

irrespective of the validity of the marriage. Section 42-A was specifically

relied upon.

39. A particularly useful distinction was drawn in Abdul Khader v. State

of Kerala

20

. The Court observed that a marriage may continue to have

recognition between the parties under personal law while a special penal

statute nevertheless governs an act committed within that marriage. Where

the particular act constitutes an offence under a special enactment, the

special law prevails to the extent of the inconsistency.

40. A subsequent decision of the Punjab and Haryana High Court has

taken a different view from the broad proposition for which Gulam Deen

and Javed are cited. In Wahid v. State of Punjab

21

, while dealing with a

seventeen-year-old Muslim girl who claimed to have married after attaining

puberty, the Court held that the child-protection statutes cannot be displaced

by personal law and relied upon Independent Thought.

41. A Division Bench of the Allahabad High Court in Rubi v. State of

U.P.,

22

decided on 1

st

July, 2026, has also examined the conflict at some

length and adopted the view that personal law cannot remove the operation

of POCSO where the girl is below eighteen.

42. The view that marriage does not displace POCSO also finds direct

support in Aleem Pasha. Its facts are strikingly close. The girl was

seventeen, was described as the Petitioner’s wife, and the case came to be

registered after a medical officer discovered during a pregnancy-related visit

20

2024:KER:82312

21

2025:PHHC:141175

W.P.(CRL) 2976/2026 Page 14 of 23

that she was a minor. The husband invoked Mohammedan law and the rule

that puberty, ordinarily presumed at fifteen, determines capacity to marry.

The Karnataka High Court rejected that submission in clear terms, holding

that POCSO is a special enactment which overrides personal law and fixes

eighteen as the relevant age for sexual activity. Significantly, the Court

nevertheless granted bail after taking into account the marriage, pregnancy

and the need for support. The distinction is instructive. The circumstances of

the marriage may bear upon bail, custody or welfare; they do not alter the

reach of the substantive offence.

43. These decisions are persuasive. The conclusion, however, does not

ultimately depend upon which line of High Court authority is preferred. It

follows from the statutory text of POCSO and the BNS, read with the

binding pronouncements in Independent Thought and Society for

Enlightenment.

What is the legal effect of Petitioner No. 2’s consent?

44. Much emphasis has been placed upon the fact that Petitioner No. 2

has never accused Petitioner No. 1 of force, coercion or deceit. We accept,

for purposes of the present petition, that this is indeed her consistent

account. But absence of force does not mean absence of an offence under

POCSO when the sexual act is with a child.

45. The bail order dated 5

th

June 2026 records that there was nothing to

suggest a forcible marriage or forcible sexual assault. That circumstance was

plainly relevant to bail. It cannot be transported unchanged into the

ingredients of the substantive offence. POCSO does not require the

prosecution to prove force where the person subjected to the sexual act is

22

2026:AHC:130283-DB

W.P.(CRL) 2976/2026 Page 15 of 23

below eighteen.

46. The same applies to family consent. Approval of the two families may

explain how the marriage came about; it cannot enlarge the statutory

capacity of the child to consent to sexual intercourse.

47. Nor does this conclusion involve treating Petitioner No. 2 as

incapable of having views or preferences. 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.

48. The statutory threshold of eighteen serves another purpose as well.

Questions of consent in relationships involving children are not always

reducible to overt physical force. Differences of age, dependence, family

expectations, social pressure, pregnancy and economic circumstances may

operate in ways which are difficult to reconstruct later. Parliament chose a

bright line so that criminal protection does not depend upon a retrospective

judicial assessment of whether a particular child was “mature enough”. A

court exercising quashing jurisdiction cannot replace that legislative choice

with its own.

49. The present case is not a case involving two adolescents separated by

a marginal age difference. At the time of the nikah, Petitioner No. 2 was

sixteen years and three months old; Petitioner No. 1 was nearly twenty-

eight. The age difference by itself does not establish guilt, but it is certainly

relevant when the Court is asked to exercise an exceptional equitable power

to terminate a POCSO prosecution at its inception.

Recent decisions concerning quashing after marriage

W.P.(CRL) 2976/2026 Page 16 of 23

50. The Court has also considered the decisions in which criminal

proceedings under POCSO have been brought to an end because the parties

subsequently married or established a family. Those decisions require some

care in their application.

51. In Ramji Lal Bairwa v. State of Rajasthan,

23

the Supreme Court

reiterated that offences under a child-protection statute are not ordinarily

private disputes which can be extinguished merely because the victim or her

family has arrived at a settlement with the accused. The nature and object of

the special statute remain material when the High Court considers quashing.

52. In K. Dhandapani v. State

24

, decided on 9

th

May 2022, the Supreme

Court interfered with a conviction in the peculiar facts where the parties had

thereafter married and established a family. The Court itself expressly

directed that the order was not to be treated as a precedent.

53. Likewise, in K. Kirubakaran v. State of Tamil Nadu

25

, the Supreme

Court, taking into account the subsisting marriage, the wife and infant child,

and the consequences which continued incarceration would have upon them,

invoked Article 142 to do complete justice. The Court expressly

acknowledged that under ordinary law the POCSO proceedings could not be

quashed merely on compromise and again stated that the order would not

operate as a precedent.

54. Those decisions illustrate that criminal law is administered in real

human settings. They do not, however, lay down that a subsisting marriage

furnishes an exemption from POCSO. Much less do they hold that the High

Court must quash every such prosecution once the child, on attaining or

23

2024 INSC 846

24

Criminal Appeal No. 796 OF 2022

W.P.(CRL) 2976/2026 Page 17 of 23

approaching majority, supports the accused.

Harmeet Singh Decision

55. The decision which requires closer consideration is Harmeet Singh v.

State of GNCTD

26

, decided by a Coordinate Bench of this Court on 16

th

April, 2026. It also concerned an FIR under Section 64(1) BNS and Section

6 POCSO which arose after doctors discovered, at the time of childbirth,

that the woman was below eighteen. She had not complained against the

accused and maintained that the relationship and marriage were voluntary.

56. Harmeet Singh did not hold that the minor’s consent rendered the

sexual act lawful. The judgment expressly declined to enter into the legal

efficacy of a minor’s consent or any ex post facto condonation. It proceeded

instead upon an exceptional exercise of quashing jurisdiction, introducing

the distinction between a de jure victim and a de facto victim and

formulating safeguards for cases where the person whom the law regards as

the victim seeks termination of the proceedings.

57. On the facts before that Court, the victim was about seventeen years

and two months and the accused about twenty-two when the acts occurred.

They had an eight-month-old infant; the Court found that prosecution and

possible incarceration of the accused would leave the woman and child

without support; and, importantly, the State itself stated that it had no

objection to quashing. Those considerations were expressly recorded as

decisive.

58. The present case is materially different. Petitioner No. 2 was sixteen

years and three months when the marriage was solemnised and Petitioner

25

2025 INSC 1272

26

2026:DHC:3142

W.P.(CRL) 2976/2026 Page 18 of 23

No. 1 was nearly twenty-eight. There is, tragically, no surviving child whose

present welfare or economic support would be jeopardised by the

prosecution. More importantly, the petition before us rests squarely upon a

much wider legal proposition: the marriage under Muslim personal law itself

removes the criminality of the subsequent sexual relationship. That

proposition cannot be accepted.

59. Harmeet Singh itself cautions that quashing POCSO prosecutions on

this ground cannot become routine and specifically requires the Court to

examine, amongst other things, the relative ages of the parties, the length of

their family life, the presence of children and whether quashing is genuinely

demanded by larger considerations of justice. It therefore does not establish

a rule that every voluntary relationship culminating in marriage displaces

POCSO. Its result rests upon its own exceptional facts.

60. There are also decisions of this Court taking a more restrained

approach to quashing. In Prince Kumar Sharma v. State (NCT of Delhi)

27

,

this Court declined to terminate a POCSO prosecution notwithstanding

marriage, cohabitation and the birth of a child, holding that the High Court

cannot create a judicial exception for a near-majority consensual relationship

where Parliament has fixed eighteen as the threshold.

61. Prasanjeet Mandal alias Denchu v. State NCT of Delhi

28

and Aman

Gupta v. State Govt. of NCT of Delhi

29

apply the same principle: later

marriage or the present support of the victim does not, by itself, erase an

offence which the statute treats as complete when the sexual act occurred.

62. In the present factual setting, that approach is the more appropriate

27

2025:DHC:10080

28

CRL.M.C. 8123/2025, decided on 17

th

November, 2025 (DHC).

W.P.(CRL) 2976/2026 Page 19 of 23

one. To quash the FIR merely because the parties describe themselves as

married and Petitioner No. 2 supports Petitioner No. 1 would effectively

introduce a marital exception into POCSO for a category of children for

whom Parliament has consciously provided none.

63. The FIR cannot be characterised as unauthorised merely because there

was no complaint. The submission that neither Petitioner No. 2 nor her

family approached the police also does not assist the Petitioners. POCSO

intentionally does not make prosecution dependent upon a complaint by the

child or her parents. Section 19 places an obligation to report an

apprehended or committed offence under the Act; failure to report attracts

consequences under Section 21.

64. The information from the hospital therefore cannot be dismissed as

gratuitous interference in the Petitioners’ family life. Once the doctors

became aware that a pregnant patient was below eighteen, the statutory

reporting machinery was attracted.

65. Whether the prosecution ultimately proves every ingredient of Section

6 is, of course, another matter. Petitioner No. 2’s pregnancy prima facie

brings at least Section 5(j)(ii) of POCSO into consideration. The precise

aggravated circumstance relied upon, and whether it is ultimately proved,

are matters for investigation and trial. At the stage of quashing, the Court is

concerned only with whether the allegations, taken as they stand, disclose an

offence. They plainly do.

Article 21 and Article 25

66. Articles 21, 25 and 26 do not carry the Petitioners’ case any further.

The freedom to choose a partner is an important facet of personal liberty,

29

CRL.M.C. 1469/2025, decided on 28

th

November, 2025 (DHC).

W.P.(CRL) 2976/2026 Page 20 of 23

and the Constitution protects the freedom to profess and practise religion.

Neither freedom, however, gives an adult a right to claim immunity from a

generally applicable penal law enacted to protect children. Constitutional

liberty protects choice; it does not create an exception to POCSO or the

BNS.

67. Nor does Section 2 of the Muslim Personal Law (Shariat) Application

Act, 1937

30

contain any such immunity. Its non-obstante clause operates

against “custom or usage to the contrary” in the matters enumerated therein.

It does not purport to repeal or override POCSO or the BNS. POCSO, on the

other hand, contains an express overriding provision in Section 42-A.

68. The argument based on personal law also encounters a more

elementary difficulty. Even if the nikah is assumed to be valid for the

purpose of this petition, the BNS itself addresses intercourse within marriage

and draws the line at eighteen. The Court would therefore have to disregard

the express text of the current penal statute in order to accept the Petitioners’

case. That cannot be done.

69. 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.

Application to the present case

70. Applying these principles, no case for quashing is made out.

Petitioner No. 2’s age is not disputed. On the Petitioners’ own showing, she

was sixteen years and three months when the nikah was solemnised. Sexual

relations thereafter are also not disputed; they are affirmatively stated by

W.P.(CRL) 2976/2026 Page 21 of 23

Petitioner No. 2 herself, and the pregnancy furnishes further prima facie

corroboration.

71. The essential premise on which quashing is sought is therefore not

that the allegations are inherently impossible, or that the basic ingredients of

the offence are absent. It is that Petitioner No. 2 consented and that, being a

Muslim above the age of puberty, she could validly marry Petitioner No. 1.

Neither circumstance takes the sexual act outside the statutory scheme.

72. The Court expresses no final opinion on whether the marriage is valid,

void or voidable or upon any civil consequence which may attach to it under

personal law or the PCMA or whether Petitioner No. 1 is ultimately guilty of

every offence under investigation. Those questions fall outside the limited

scope of the present petition.

73. 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 the BNS for sexual intercourse with a wife who was below

eighteen at the relevant time. Any other view would create, through judicial

decision, an exception which Parliament has expressly excluded.

74. There is also a wider consideration. The POCSO framework would be

substantially weakened if an adult could answer a prosecution concerning a

girl below eighteen simply by producing a marriage ceremony recognised by

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.

75. The law is conscious that individual cases may involve affection

30

“Shariat Act”

W.P.(CRL) 2976/2026 Page 22 of 23

rather than violence, and relationships rather than predation. But that is

precisely why the statutory threshold is expressed in terms of age rather than

subjective intention. Courts can respond to individual circumstances through

the legal discretion available at the appropriate stage. They cannot respond

by redrawing the offence itself.

Disciplinary proceedings, compensation and the exhumation

76. The prayers for disciplinary proceedings against the police and for

compensation are founded substantially upon the assertion that the FIR itself

was illegally registered and that Petitioner No. 1 was falsely implicated.

Once that premise is rejected, neither relief can follow merely from

registration and investigation of the FIR.

77. We are conscious of the distressing circumstances surrounding the

stillbirth and the subsequent exhumation of the child. The order dated 12

th

June, 2026 records that exhumation was directed under Section 196(4)

BNSS for DNA profiling and establishment of paternity. The legality and

necessity of that particular investigative measure raise a distinct question.

78. Equally, the grief suffered by the Petitioners following the loss of the

child cannot be understated. But sympathy for that loss cannot

retrospectively render the registration of a cognizable offence unlawful.

Conclusion

79. The Court is not unmindful of Petitioner No. 2’s position. She says

that she chose the marriage, continues to stand by Petitioner No. 1 and does

not regard herself as having been 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

W.P.(CRL) 2976/2026 Page 23 of 23

whether her consent, given when she was below eighteen, and the nikah said

to have preceded the sexual relationship, take the case outside POCSO and

the BNS. They do not.

80. POCSO embodies a legislative judgment that, for the purpose of

sexual offences, childhood ends at eighteen. That protection is not lost upon

marriage; Independent Thought holds precisely to the contrary. Society for

Enlightenment has since reiterated that POCSO applies to sexual intercourse

with a minor wife. The current BNS places the same rule in the text of the

penal law itself. Personal law cannot be employed to create an exception

which each of these legal instruments refuses to recognise.

81. The petition is accordingly dismissed.

82. The prayer for initiation of disciplinary proceedings against the police

officials and the prayer for compensation are also declined.

83. It is clarified that the observations in this judgment are confined to the

prayer for quashing and shall not be treated as findings on the guilt of

Petitioner No. 1. The Trial Court shall consider the matter on the evidence

placed before it and in accordance with law, uninfluenced by any

observation on factual culpability contained herein.

84. Nothing in this judgment shall affect the order dated 5

th

June, 2026

granting bail to Petitioner No. 1, which shall continue to be governed by its

own terms.

85. Pending applications, if any, are disposed of.

SANJEEV NARULA, J

SEPTEMBER 23, 2026

as