The Kerala High Court has ruled that a Muslim man can face criminal liability under the Protection of Children from Sexual Offences (POCSO) Act if he has sexual intercourse with his wife who is below 18 years of age. The Court made it clear that the validity of the marriage under Muslim personal law does not take such an act outside the scope of the POCSO Act.
Man seeks quashing of criminal proceedings
The Court was hearing a petition filed by a man who sought to quash criminal proceedings against him. He was the first accused in a case involving offences under Sections 366 and 376(2)(n) of the Indian Penal Code and Sections 6(1), 5(l) and 15(1) of the POCSO Act.
According to the prosecution, the accused kidnapped and took the minor girl in a car to his house and repeatedly raped her over four days from 23rd October, 2021 to 26th October. The second and third accused have helped him to facilitate the offence. The victim’s parents were also accused of failing to report the offence to the authorities.
MUSLIM PERSONAL LAW CAN’T BE A PRETEXT FOR MARRYING A MINOR: KERALA HC
— Rahul Shivshankar (@RShivshankar) September 1, 2026
PROGRESSIVE RULING CRIMINALISES PAEDOPHILIA IN THE NAME OF RELIGION
Kerala HC rules that if one party to a marriage is below 18, POCSO applies irrespective of the marriage’s validity under Muslim personal… pic.twitter.com/JyZNKDpLGn
The man argued that the girl was his legally wedded wife. He claimed that they had married in 2021 according to Islamic religious rites when she was 17 years and one month old. He relied on Exception 2 to Section 375 of the IPC, arguing that sexual intercourse with a wife above the age of 15 did not amount to rape under the provision.
The prosecution and the complainant opposed his plea.
Court says marriage does not override POCSO
After hearing both sides, the High Court said that the allegations, if taken at face value, prima facie disclosed the offences against the accused.
The Court also examined the claim that the girl was the petitioner’s wife. The man had relied mainly on statements given to police by the girl, her brother and the Qazi of the mosque where the alleged marriage took place. However, no documentary evidence proving the marriage was produced.
The Court observed that whether a valid marriage actually took place would have to be decided during the trial.
However, the Court clarified, “Undisputedly, provisions of the POCSO Act apply if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage under Muslim personal law.”
Supreme Court ruling on marital rape exception
The High Court also rejected the argument that the accused was protected by Exception 2 to Section 375 of the IPC. It relied on a Supreme Court ruling that had read down the exception.
Following that interpretation, sexual intercourse or sexual acts by a man with his wife are not excluded from the definition of rape when the wife is under 18 years of age.
The Kerala High Court therefore concluded that the marriage could not be used to escape liability under the POCSO Act and dismissed the man’s plea seeking quashing of the criminal proceedings.
