The Delhi High Court has held that according to Muslim law, a minor girl who has attained puberty can marry without the consent of her parents and has the right to reside with her husband [Fija and Anr v State Govt of NCT of Delhi and Ors].
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 (POCO Act) will not be attracted.
Justice Jasmeet Singh, therefore, granted police protection to a Muslim couple who got married earlier this year as per Mohammedan rites in Bihar’s Aauriya district.
The couple had moved the court seeking a direction to the authorities to give them protection since there was opposition to the marriage from the girl’s family which has also lodged an FIR against the man under Section 376 (rape) of Indian Penal Code (IPC) and Section 6 of POCSO Act.
The girl was stated to be around 15 years and 5 months old at the time of marriage and had become pregnant after getting married.
Justice Singh noted that the petitioners are lawfully wedded to each other and cannot be denied each other’s company which is the essence of marriage.
“If the petitioners are separated, it will only cause more trauma to the 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 private space of the petitioner and separate the couple. The doing of the same will tantamount to encroachment of personal space by the state,” the judge said.
The Court also held that the POCSO Act will not be attracted in the present case since physical relations were established after marriage and it was not a case of sexual exploitation but a matter where two people were in love, got married and then had physical relations.
While holding thus, Justice Jasmeet Singh differentiated the present case from his order in another matter wherein he had held that a Muslim man can be charged under the POCSO Act for having sexual intercourse with a minor girl who had attained puberty.
The judge said that two cases are different since in the previous matter, there was exploitation of the child as sexual relationship was established prior to marriage and after establishing the physical relationship, the accused had refused to marry the prosecutrix.
“On the other hand, in the present case, it is not a case of exploitation but a case where the petitioners were in love, got married according to the Muslim laws, and thereafter, had physical relationship,” the Court said.
The judge added,
“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.”
Advocates Arvind Singh and AK Mishra appeared for the petitioners.
Additional Standing Counsel (ASC) Rupali Bandhopadhyay and advocates Akshay Kumar and Abhijeet Kumar appeared for the State.