Muslim minor girl who attains puberty can marry, husband not liable under Pocso: Delhi HC

New Delhi: The Delhi High Court has held that under Muslim law, a girl who has attained the age of puberty could marry without the consent of her parents and has the right to reside with her husband even when she is a minor.

The court further held that in such cases, when physical intercourse happens only after the wedlock, offences under the Protection of Children from Sexual Offences Act (POCSO Act) will not be attracted.

The order was passed by Justice Jasmeet Singh while dealing with a petition of a Muslim couple who got married as per religious customs in Bihar after eloping. They sought protection from the court as well as directions to ensure that nobody separates them from each other.

The judge said that the lawfully wedded couple cannot be denied each other’s company, and the state cannot enter the private space of a wilfully married couple and separate them.

The court said it would tantamount to the encroachment of their personal space.

The girl was 15 when she got married. She complained that she was regularly beaten by her parents at home and was forced to marry someone else. She also said that she was currently pregnant with her first child.

If the petitioners are separated, it will only cause more trauma to the woman and her unborn child. The aim of the state here is to protect her best interest, the court said.

“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, said the court in its order dated August 17.

The court, in its order, noted that the case was not one of exploitation but a case where the petitioners were in love, got married according to the Muslim laws, and thereafter, had physical relationships.

It added that the status report given by the police showed that the parties were living with each other as husband and wife and there was no averment that they had sexual intercourse before their marriage which could attract law against child sexual abuse.

The court also ordered police to provide personal protection to the couple.