KERALA AND ALLAHABAD HIGH COURTS HOLD: POCSO AND PCMA OVERRIDE PERSONAL LAW ON AGE OF MARRIAGE

Rubi & Ors. v. State of U.P. & Ors. 2026 (PIL) No. 746 of 2020, Allahabad High Court, Justice J.J. Munir and Justice Achal Sachdev And Crime No. 461 of 2022 Mannarkkad Police Station (now S.C. No. 779 of 2023 Fast Track Special Court Pattambi) 2026:KER:64110, Kerala High Court, Justice Jobin Sebastian (Order dated 19 August 2026)

Overview

Two High Courts have addressed the same recurring defence in unconnected cases this year. The defence claims that Muslim personal law places a child’s marriage and its consequences beyond the reach of India’s child protection statutes. The Allahabad High Court and the Kerala High Court both rejected this defence and held that the Prohibition of Child Marriage Act 2006 and the POCSO Act override personal law on the age of marriage and the age of consent.

Case 1

A police team and a Child Line rescue team reached a village in Bulandshahr district on 15 February 2026 on information that the marriage of a 16-year-old girl was about to take place. The accused and several unidentified persons allegedly abused and threatened the officials and forcibly took the girl away. Nineteen individuals filed a writ petition before the Allahabad High Court seeking to quash the resulting FIR. Their defence rested on Muslim personal law under which a girl who has attained puberty is treated as competent to marry.

The bench held that it stood in complete agreement with the Kerala High Court’s reasoning in Moidutty Musliyar. It held that no personal law can override the prohibition on child marriage created by the PCMA. The Court held that the age of marriage for every citizen irrespective of religion is the age fixed by the PCMA. It observed that marriage below 18 would inevitably lead to consummation amounting to an offence under POCSO since a child under that Act is any person below 18. The Court found that the police and Child Line officials were acting within the law while trying to prevent a child marriage. It held that the gravamen of the FIR was the assault on officials in the discharge of their statutory duties. The writ petition was dismissed and the interim stay earlier granted was vacated.

Case 2

The accused allegedly took a minor girl by car to his house and raped her repeatedly over four days beginning 23 October 2021. He was charged under Sections 366 and 376(2)(n) of the IPC and Sections 5(l) 6(1) and 15(1) of the POCSO Act. He sought quashing of the proceedings on the ground that the girl was his legally wedded wife married under Islamic rites at the age of 17 years and one month. He invoked Exception 2 to Section 375 of the IPC to argue that intercourse with a wife above 15 does not constitute rape.

The Court found that the petitioner had produced no documentary evidence of the marriage and held that the question of a valid marriage was for trial. It held that even assuming a valid Muslim marriage had taken place that would not absolve the petitioner of liability under POCSO. The reasoning rested on Section 2(1)(d) of the POCSO Act which defines a child as any person below 18 and Section 42A which gives the Act overriding effect over any inconsistent law. The Court relied on its own earlier ruling in Khaledur Rahman v. State of Kerala to hold that marriage does not fall outside the sweep of POCSO. The Court separately rejected the marital rape exception citing Independent Thought v. Union of India which read down Exception 2 to Section 375 to apply only where the wife is 18 years or older. It held that intercourse with a girl below 18 attracts rape under Section 376 IPC regardless of any marital relationship. The petition was dismissed and the trial before the Fast Track Special Court Pattambi stands.

The Common Position

Both rulings trace back to the Kerala High Court’s 2024 decision in Moidutty Musliyar v. Sub Inspector Vadakkancherry Police Station which first held that the PCMA supersedes the Muslim Personal Law (Shariat) Application Act 1937 and the Majority Act 1875. The Supreme Court has so far only expressed doubt on the question. In Society for Enlightenment and Voluntary Action v. Union of India the Court flagged concerns over personal law prevailing over the PCMA with reference to the Prohibition of Child Marriage (Amendment) Bill 2021. That Bill lapsed with the dissolution of the 17th Lok Sabha in 2024 and never became law. The question remains formally unsettled at the Supreme Court even as High Courts converge on one position.

Legal Position Established

Personal law cannot be pleaded as a shield against the age of marriage fixed by the PCMA or the age of consent fixed by POCSO. Disputed questions of fact including whether a valid marriage took place or whether officials acted lawfully are matters for trial and not for resolution at the quashing stage. With the Supreme Court yet to rule authoritatively and the 2021 Amendment Bill dead without passage this position remains open to further litigation before other High Courts.

Shomdeepta Chanda

Associate

The Indian Lawyer & Allied Services

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