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Whether Exception 2 To S.375 IPC Available To A Muslim-Husband When Wife Is Below 18 Years Of Age, Kerala High Court Clarifies

The Hon’ble High Court of Kerala gave a remarkable decision in a criminal miscellaneous petition filed under section S.528 BNSS (S.482 CrPC) to quash an FIR. The accused-petitioner, a Muslim-husband, had been booked under S.366 and S.376(2)(n) of IPC, Sec 6(1) r/w S.5(1) & S.15(1) of POCSO Act 2012.

The petitioner’s counsel urged that the de facto complainant is legally wedded wife of accused-petitioner. Their marriage took based on Islamic religious rights when she was 17 years and 1 month old. Such marriage has been admitted by the de facto complainant, the brother of the de facto complainant and the Kazi of the Mosque where the marriage was solemnized. Hence, Exception 2 to S.375 IPC is applicable to the petitioner and this case shall be quashed.

Whereas, the complainant’s counsel argued that S.2(1)(d) of the POCSO Act 2012 declares that child means a person below eighteen years of age. Also, S.6 of the said Act provides for aggravated penetrative sexual assault as the accused-petitioner repeatedly forced sexual acts on the de facto complainant (the victim) during the abduction, continuously for four days. Therefore, he committed an offence inviting the charge of S.376 IPC.

While hearing the arguments, the hon’ble Mr. Justice Jobin Sebastain expressed that the effect of Islamic personal laws and customs should be taken care while considering Exception 2 to S.375. The Court said that there is no documentary evidence showing the solemnization of such marriage had taken place. Undisputedly, the provisions of POCSO Act apply if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage under personal laws.

The Court relied on its judgment in Khaledur Rahman v. State of Kerala & Anr. [2022 KHC Online 913]. A extract hereby given as, “The POCSO Act is a special statute enacted specifically for the protection of children from sexual offences.” …… “Marriage is not excluded from the sweep of statute, …. .”

The court said that S.2(1)(d) of the POCSO Act defines child as any person below eighteen years of age. Also S.42A of the Act provides an overriding effect to this act over other acts or personal laws unless contrary is allowed by any custom or usage. The allegations in the case prima facie constituted the ingredients required to attract the offences alleged under the POCSO Act. The ground of exception 2 of S.375 can not be allowed since no documentary proof of marriage has been submitted to the Court.

Moreover, the High Court emphasized on judgment by the Hon’ble Supreme Court in Independent Thought v. Union Of India & Anr. (2017) 10 SCC 800, where the SC considered the applicability of the said exception in the case of married girl aged 15 to 18 years and held that the said exception was violative of the Articles 14, 15, and 21 of the Constitution of India, contrary to constitutional morality and human rights concepts and inconsistent with pro-girl child statutory provisions in force. Further, the Hon’ble Supreme Court applied a harmonious and purposive interpretation that exception 2 of S.375 IPC provides that “sexual intercourse or sexual acts by a man with his own wife, not being under 18 years of age, is not rape.” Thereby aligning with constitutional and statutory philosophy.

Hence the Court held that on plain reading of the allegations contained in the First Information Statement (FIS) and the materials accompanying the final report, if accepted at the face value disclose the commission of an alleged offence. The disclosure of a cognizable offence makes it mandatory to register an FIR as mandated in Lalita Kumari v. State of U.P. (2017) 2 SCC 1. Hence it is not suitable case to quash under S.528 BNSS. The court dismissed the petition.

Legal Citation: X v. Y (Judgment in the CRL MC No. 8899 of 2024 filed at High Court of Kerala and decided on 19.08.2026)

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