Safiya Malik

The High Court of Delhi Single Bench of Justice Arun Monga, while granting regular bail to an accused charged under Sections 363 and 376 of the IPC and Section 6 of the POCSO Act, flagged the “recurring conflict” between Islamic personal law and Indian criminal statutes on the legality and criminality of child marriages, pointedly asking, “Is it not the time to move towards a Uniform Civil Code (UCC)?” Justice Monga observed that, under Islamic law, a minor girl who has attained puberty may lawfully marry, yet such a union is treated as a criminal offence under the penal and child-protection laws of India. Highlighting this tension, the Court found further incarceration unwarranted in view of the prosecutrix’s support for the accused, the disputed age records, and the constitutional mandate to protect personal liberty during prolonged pre-trial custody.

The case arose from a criminal prosecution in Delhi involving allegations of abduction and sexual assault of a minor girl. The prosecution was initiated on the complaint of the girl’s stepfather, who alleged that the girl, then below the age of 18, had been enticed away by the accused and subjected to sexual exploitation. Based on this complaint, an FIR was registered invoking Sections 363 and 376 of the Indian Penal Code (IPC) relating to kidnapping and rape, as well as Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, which prescribes punishment for aggravated penetrative sexual assault on a minor.

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The complainant contended that the girl had been unlawfully removed from his lawful guardianship and that her minority made any alleged marriage or physical relationship void in the eyes of Indian criminal law. The prosecution emphasized that under the POCSO Act, a person below 18 years is treated as a child and that any sexual relationship with such a person, even if claimed to be consensual or part of a marriage, constitutes an offence.

The accused, in seeking bail, asserted that there was no abduction or coercion. He claimed that the girl had voluntarily left her parental home and married him under Islamic law, which recognizes the validity of marriage once a girl has attained puberty. The accused also relied on the girl’s consistent statements before the Court expressing her support for him, her willingness to continue living with him as his wife, and her refusal to return to her stepfather’s home.

Medical and documentary evidence was placed before the Court, including school records indicating the girl’s date of birth, as well as her statements recorded under statutory provisions. There was a dispute over the girl’s exact age at the time of the alleged incident, with the defence contesting the prosecution’s reliance on documentary proof to establish minority.

The statutory provisions directly involved were Sections 363 and 376 of the IPC and Section 6 of the POCSO Act. The Court also referred to the broader conflict between Islamic personal law, which permits marriage of a girl attaining puberty, and Indian criminal statutes that criminalize such marriages where the girl is under 18 years of age. This conflict was acknowledged as central to the case while the Court assessed the propriety of continuing the accused’s detention pending trial.

Justice Arun Monga noted that the case presented “neither a victim, nor a victimizer, nor even a complainant, yet the petitioner (24 year old) is alleged to be in conflict with law.” The Court observed that the prosecutrix had consistently supported the petitioner, stating her marriage was voluntary and that she wished to reside with him. It was also recorded that the FIR was lodged under the signature of her stepfather, against whom she had separately filed allegations of sexual assault corroborated by DNA evidence.

The Court observed: “The report to the police, though shown lodged in the name of mother of the prosecutrix was actually signed by the latter’s stepfather… It is obvious that the step-father did so in order to arm-twist, keep up/exert pressure on and deter the prosecutrix from opening her mouth against his own crime.”

It stated: “Prima facie, the prosecutrix’s claim on her age appears be believable, particularly since she had already given birth to a child at the time she married the applicant.” The Court further recorded: “Even if the prosecution’s version—that she was 14 at the time—is taken as correct, her appearance and maturity may have genuinely misled the applicant into believing that she was above 18.”

The Court stated: “Position of law clearly is that Muslim personal law cannot override POCSO Act and/or BNS. Though, Supreme Court in K. Dhandapani (supra), taking a pragmatic view, due to peculiar facts therein opined to the contrary but barred it as precedent.” However, for the purpose of bail, the Court considered the consensual nature of the relationship and the prosecutrix’s affidavit supporting the petitioner.

“The arrest was carried out without adherence to the established guidelines governing arrest… This was well beyond the statutory period of 24 hours mandated under Article 22(2) of the Constitution and Section 58 BNSS. Such delay is not only illegal and arbitrary but also renders the detention of the applicant unlawful.” The Court also recorded failure to provide written grounds of arrest and failure to inform relatives.

The Court noted: “The charge-sheet was filed on 12.11.2024, and though charges have been framed, not a single witness has been examined till date. Given that the alleged offence falls under Section 376 IPC (now Section 64 BNS), the proviso to Section 346(1) BNSS… requires completion of trial within two months… Despite the expiry of more than eight months, no meaningful progress has been made.”

Justice Arun Monga stated: “Accordingly, applicant is now ordered to be released on regular bail, subject to conditions to be imposed by the learned Trial Court. Till then, the order dated 19.09.2025 granting interim bail to the applicant shall remain in force.”

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“I have consciously refrained from expressing any conclusive opinion on the legality of the marriage in question… recurring conflict is clear i.e. under Islamic law, a minor girl attaining puberty may lawfully marry, but under Indian criminal law such a marriage renders the husband an offender under the BNS and/or POCSO or both. Should society be criminalized for adhering to long-standing personal laws? Is it not the time to move towards a Uniform Civil Code (UCC)?”

“Before parting, it would be apposite to observe that this conflict warrants legislative clarity… A pragmatic middle path could be to standardize core protections, such as prohibiting child marriages across the board with penal consequences… The decision is best left to the wisdom of the law makers… but lasting solution must soon come from the Legislature/Parliament.”

Advocates Representing the Parties
For the Petitioner: Mr. Furkan Ali Mirza, Mr. Asim Kirmani, Mr. Haris Ahmad, and Mr. Abdul Wasih, Advocates.

For the Respondents: Mr. Sanjeev Sabharwal, APP for the State with ASI Rakesh. Ms. Nandita Rao, Senior Advocate (Amicus Curiae) with Mr. Amit Peswani, Advocate.

Case Title: Hamid Raza v. State of NCT of Delhi
Neutral Citation: 2025: DHC:8643
Case Number: Bail Application No. 2867/2025
Bench: Justice Arun Monga