Per Muslim law, girls who attain puberty can marry of their own will: Delhi HC

The Delhi High Court on Tuesday passed a verdict stating that under Muslim Law, a minor girl who has obtained her puberty can marry without the consent of her parents. It also said that the husband will not be charged under the POCSO Act (Protection of Children from Sexual Offences Act).

The bench further stated if sexual intercourse occurs after wedlock with the consent of both parties, POCSO will still not be applicable.

The bench headed by Justice Jasmeet Singh gave the verdict during the hearing of a case where a young Muslim couple asked for police protection as they had married against the wishes of the girl’s parents.

The girl, a minor, stated in her plea her family members had lodged a complaint against her husband under Section 376 (rape) of Indian Penal Code (IPC) and Section 6 of POCSO Act.

The girl was 15 years and 5 months old at the time of her marriage. She is currently pregnant.

“If the petitioners are separated, it will only cause more trauma to petitioner no.1 (girl) and her unborn child. The aim of the state here is to protect the best interest of petitioner no.1. If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter the private space of the petitioner and separate the couple. The doing of the same will tantamount to the encroachment of personal space by the state,” the judge said.

Interestingly Judge Jasmeet Singh contradicted his earlier order where he had held an accused under the POCSO Act.

Reacting, Justice Jasmeet Singh clarified they are two different cases. In the first case the accused had a physical relationship with the complainant and refused to marry. But in the second case, the physical relationship was established after they got married.

According to the judge, in the second case, both parties were in love and got married according to Muslim Law.

“It is also clear from the status report that the parties were living with each other husband and wife. There is no averment that they had sexual intercourse prior to their marriage. In fact, the status report is suggestive of the fact that they were married on 11.03.2022, and thereafter, established physical relationship,” the judge added.