The Delhi High Court has drawn attention to deep contradictions between Islamic personal law and Indian criminal statutes in relation to child marriage. Justice Arun Monga, in a hearing of a bail petition, asked rhetorically whether society should be criminalized for adhering to religious personal laws that conflict with national legislation. He questioned whether it might not now be necessary to move toward a Uniform Civil Code to resolve such recurring conflicts.
The case involved a 24-year-old man accused of marrying a female who, in the prosecution’s account, was a minor (15–16 years). The woman, however, claimed to be 20 at the time. She had become a mother at 14 after alleged assault by her stepfather, and later the accused married her under Islamic law. During the proceedings, the accused also faced rape charges lodged by the woman’s biological father.
The Court noted that under Islamic personal law, puberty — generally presumed at 15 years unless proven otherwise — is considered marriageable age for girls. Many earlier judicial decisions have recognized marriages of Muslim girls aged between 15 and 18 as valid under Shariat, unless the absence of puberty is established. However, Indian criminal laws such as the Bharatiya Nyaya Sanhita (BNS) and the Protection of Children from Sexual Offences (POCSO) Act treat sexual relations with minors as offences, regardless of marital context.
The bench stated that this gives rise to a stark dilemma: whether national criminal law should override personal law practices that continue to allow underage marriages. The judge emphasized that personal law cannot displace penal statutes. The Court asserted that Muslim personal law must yield where personal laws conflict with the POCSO Act or BNS, which explicitly criminalize sexual acts with minors.
In the immediate case, the Court considered the bail application. It observed that the question of whether the marriage was valid, or whether a minor was involved, cannot be conclusively adjudicated at the bail stage. Nonetheless, it was an appropriate case to grant bail. The Court found a procedural lapse as well: the accused was not furnished with written grounds of arrest as required under constitutional protections, which violated Article 22(1) and Section 47 of BNS. On a prima facie view, taking into account that the parties claimed consent and that they were adults (24 and 20), the Court granted bail.
The judgment underscored that the dispute over whether Islamic personal law should permit marriages before the age of 18 when criminal law prohibits sexual activity with minors shows why there is tension in having different legal regimes for different communities. The Court invited the Legislature to provide clarity. It suggested that a balanced middle path might be to standardize certain protective legal norms — such as prohibition of child marriage — across communities, while permitting less controversial personal matters to evolve within community practices.
The High Court thus used a bail matter to foreground the need for legislative reform, highlighting how religious personal law practices may unintentionally place community members at risk of criminal liability, and urged consideration of a Uniform Civil Code or legislated statutory consistency to resolve enduring conflicts between religious tradition and constitutional criminal norms.
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