Recently, the Punjab and Haryana High Court held that sexual activity with a person under 18 years of age constitutes statutory rape under the Protection of Children from Sexual Offences (POCSO) Act, 2012, irrespective of consent or marital status. The Court addresses a sensitive intersection of child protection, personal law, and family autonomy.
The case arose from a petition filed by a 17-year-old Muslim girl and her husband, who sought judicial protection after marrying against the objections of their families. The couple contended that, under Muslim personal law, a girl is entitled to solemnise marriage upon attaining puberty, generally presumed to be at 15 years of age.
Justice Subhas Mehla observed, "...in the face of contrary statutory law, personal law cannot prevail." The Court highlighted that under the Prohibition of Child Marriage Act, 2006, the minimum age for a girl to marry is 18 years. Furthermore, under the POCSO Act, any sexual activity with a person below 18 years constitutes statutory rape, regardless of consent or marital context. The Juvenile Justice (Care and Protection of Children) Act, 2015, was also invoked to emphasise the state's duty to protect children from abuse, exploitation, and neglect.
The Court elaborated, "These special laws are secular, welfare-centric, and override personal laws. They reflect the compelling state interest in protecting children and legislative intent to criminalise child marriage and sexual acts with minors, even under the guise of marriage. In light of the aforesaid discussion, this court is not inclined to grant protection to a couple where one of the spouses is a minor, as granting the same would defeat the very purpose of the aforesaid beneficial statutes."
The State had opposed the couple’s plea, noting that the minor status of the girl rendered the marriage voidable under the Prohibition of Child Marriage Act, 2006. The Court, exercising its parens patriae jurisdiction, emphasised its obligation to determine the child’s best interest. Accordingly, the bench directed the Hoshiarpur SSP to produce the minor before the Child Welfare Committee, which is mandated to conduct an inquiry under Section 36 of the Juvenile Justice Act and ensure her safety and welfare. The police were also instructed to protect both petitioners from any physical harm.
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