A man accused of kidnapping and repeatedly raping a 17-year-old girl told the Kerala High Court he could not be prosecuted — because, he said, he had married her. Under Islamic rites, with her family and a Khazi present, he argued the girl was his wife, and a wife is not a rape victim under the law’s marital exception. On August 19, 2026, Justice Jobin Sebastian rejected that argument, refusing to quash the criminal proceedings in X v. X and Others (Crl.M.C. No. 8899 of 2024, 2026:KER:64110).

The ruling sits at the intersection of two bodies of law Indian courts have never fully reconciled — the Protection of Children from Sexual Offences (POCSO) Act, 2012, which treats every person below 18 as incapable of consenting to sex, and personal laws that, in some communities, have historically permitted marriage at or after puberty. Kerala’s answer, once again, is that the child-protection statute wins. But not every High Court has said the same thing, and the Supreme Court has so far avoided settling the question directly.

The Case: X v. X and Others

The Allegations and the Defence

According to the prosecution, the accused, then 27, kidnapped the girl by car in October 2021 and took her to his residence, where he allegedly raped her repeatedly over four days, with co-accused persons facilitating the offence. Police charged him under Sections 366 (kidnapping to compel marriage) and 376(2)(n) (repeated rape of the same woman) of the IPC, and Sections 5(l)/6(1) and 15(1) of the POCSO Act, as reported by Bar & Bench. Because the alleged offence predates July 1, 2024, it was charged under the IPC rather than its successor, the Bharatiya Nyaya Sanhita (BNS).

The accused sought to quash the FIR under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) — the inherent-powers provision that replaced Section 482 CrPC. His case: he had married the girl under Muslim personal law on July 23, 2021, corroborated by police statements from the complainant, her brother, and the officiating Khazi. On that footing, he invoked Exception 2 to Section 375 IPC, the marital exception that removes sex between spouses from the definition of rape.

The Court’s Reasoning

A Disputed Marriage Belongs at Trial, Not at Quashment

Justice Sebastian’s first move was procedural: no marriage certificate was produced, only witness statements, so whether a valid marriage occurred is a disputed fact question — not something the High Court’s quashing jurisdiction exists to resolve. That alone justified dismissing the petition. But the Court went on to address the marital-exception argument on its merits, to foreclose it even if the marriage were proved.

Section 42A: Why POCSO Overrides Personal Law

The Court’s central holding rests on Section 42A of the POCSO Act, which makes POCSO’s provisions “in addition to and not in derogation of” any other law and gives them “overriding effect” wherever there is inconsistency. Read with Section 2(1)(d), which defines a “child” as anyone below 18 regardless of marital status, the Court held that sex with a girl below 18 attracts POCSO “and, in such a situation, whether the child is the wife of the accused or not is of little consequence.” A personal-law marriage, even if genuine, cannot contract a child out of a protection Parliament made non-negotiable.

From Independent Thought to the BNS

Exception 2 to Section 375 IPC originally excluded a husband’s sex with his wife from “rape” so long as she was not under 15 — a carve-out sitting awkwardly against the Code’s age of consent of 18. In Independent Thought v. Union of India, (2017) 10 SCC 800, the Supreme Court read that threshold up to 18. Justice Sebastian applied it directly: “a person who engages in sexual intercourse with a girl below the age of eighteen years is liable to be prosecuted for the offence of rape under Section 376 IPC, even if the victim is his wife and is between fifteen and eighteen years of age.” Parliament has since gone further than reading-down: Exception 2 to Section 63 BNS now excludes only sex with a wife who is “not under eighteen years of age,” codifying Independent Thought directly into statute.

A Divided Judicial Landscape

Kerala has said this before: in Khaledur Rahman v. State of Kerala (2022), Justice Bechu Kurian Thomas held that a Muslim marriage is not excluded from POCSO’s reach, expressly declining to follow contrary reasoning from other High Courts. But those other High Courts have genuinely split. The Delhi High Court has held that POCSO applies to a minor Muslim girl regardless of whether she has attained puberty, rejecting the argument that puberty made a 16-year-old a “major” under personal law who could fall outside the Act. The Punjab and Haryana High Court has ruled both ways: in April 2024, it refused to entertain a personal-law marriage defence in a case involving a 15-year-old, with Justice Harpreet Kaur Jeewan holding POCSO prevails over personal law — yet in 2022, a different bench of the same court had upheld a 16-year-old’s marriage as valid because she had attained puberty.

That 2022 ruling reached the Supreme Court in 2025 when the National Commission for Protection of Child Rights (NCPCR) challenged it. The Court dismissed the plea, with Justices B.V. Nagarathna and R. Mahadevan holding that the NCPCR, a stranger to the litigation, had no standing to challenge an order protecting a married couple, and that no question of law would be considered on those facts. It did not rule on the merits, and the dismissal carries no precedential value. The underlying conflict between High Courts remains unresolved; X v. X is one more data point in it, not the last word.

Practical Implications

For prosecutors and defence counsel, Kerala now offers a clear, recent precedent for treating a child’s age, not a claimed marriage, as the operative fact at the quashment stage — and for resisting such petitions before trial even begins. For families and community bodies that facilitate marriages involving minors, the judgment is a reminder that religious solemnisation carries no immunity from POCSO prosecution, and can expose those who arrange or officiate the marriage to liability under the Prohibition of Child Marriage Act, 2006 as well.

For legislators, the split between High Courts — and the Supreme Court’s reluctance to resolve it on the merits — points to a gap only Parliament or a larger Bench can close: whether POCSO’s blanket 18-year threshold should explicitly override every personal law on marriageable age, rather than being litigated High Court by High Court, with a minor’s protection depending on which court hears the case.

Conclusion

X v. X and Others does not break new doctrinal ground so much as reaffirm, forcefully, a principle Kerala’s courts have stated before: a child does not lose POCSO’s protection by virtue of marriage, however that marriage came about. For practitioners, it is a useful citation for resisting personal-law defences to child sexual offence charges. For the wider legal system, it is a reminder that India still lacks one settled, nationwide answer to a question touching thousands of minors: does any personal law ever override the state’s minimum age of consent? Until the Supreme Court decides that question on its merits, a girl’s protection will continue to depend, in part, on which High Court hears her case.

Frequently Asked Questions

Does this ruling mean all marriages involving a minor are now illegal in India?

Not directly. The ruling concerns criminal liability under POCSO and the IPC for sex with a person under 18, regardless of a claimed marriage. Whether the marriage itself is valid under a personal law, and how it’s treated under the Prohibition of Child Marriage Act, 2006, are related but distinct questions that courts have answered inconsistently.

Can a person accused under POCSO ever use marriage as a defence?

Based on this ruling and Kerala’s earlier precedent, no — not when the alleged spouse is under 18. Section 42A gives POCSO overriding effect over any other law, including personal law, so a marriage cannot remove a minor from its protection.

What is Exception 2 to Section 375 IPC, and does it still apply?

It is the marital exception that historically excluded a husband’s sex with his wife from “rape.” After Independent Thought v. Union of India (2017), it applies only where the wife is 18 or older. The BNS, governing offences after July 1, 2024, now states that 18-year threshold directly in Exception 2 to Section 63.

Have other High Courts ruled differently on Muslim minor marriages and POCSO?

Yes. Delhi and, more recently, Punjab and Haryana have held POCSO overrides personal-law marriage claims. But a 2022 Punjab and Haryana ruling went the other way, upholding a 16-year-old’s marriage on the basis that she had attained puberty — a ruling the Supreme Court declined to disturb, without treating its own dismissal as binding precedent.

Why didn’t the Supreme Court settle this question when the NCPCR approached it?

It dismissed the NCPCR’s challenge chiefly on standing grounds, questioning why a child-rights body would challenge an order protecting a married minor couple, and found no substantial question of law on those specific facts. It did not rule on whether personal law can validate a marriage below 18 for POCSO purposes, and clarified its dismissal carries no precedent value.

What happens next in the Kerala case itself?

The High Court only refused to quash the FIR; it did not decide guilt. The case proceeds to trial, where the prosecution must prove the allegations, including the girl’s age, and where the disputed marriage ceremony may be examined as evidence — though the Court has already held that proving it would make no legal difference to liability under POCSO.

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