In XXXXX v. XXXXX & Ors., the Kerala High Court considered whether criminal proceedings alleging offences under Sections 366 and 376(2)(n) IPC and Sections 6(1) read with 5(l) and 15(1) of the POCSO Act could be quashed on the ground that the minor victim was the legally wedded wife of the accused. The petitioner, the first accused, was alleged to have kidnapped the minor victim, taken her to his residence and repeatedly raped her over a period of four days, while his parents were alleged to have facilitated the offence. Seeking quashing under Section 528 BNSS, the petitioner contended that he had married the victim under Islamic rites when she was 17 years and one month old and sought to rely upon Exception 2 to Section 375 IPC as it originally stood.The High Court rejected the contention at the threshold. Applying the settled principles governing quashing under Section 528 BNSS, the Court held that the allegations in the First Information Statement, taken at face value, prima facie disclosed the ingredients of the offences and that disputed factual matters could not be adjudicated through a mini-trial at the quashing stage. The Court also noted that the alleged marriage was itself a disputed question of fact and was unsupported by documentary evidence, making it a matter for determination during trial.With respect to the POCSO Act, the Court emphasised that Section 2(1)(d) defines a “child” as a person below 18 years of age, while Section 42A gives the POCSO Act overriding effect over inconsistent laws. Relying upon Khaledur Rahman v. State of Kerala, the Court reaffirmed that marriage does not take a minor outside the protective scope of POCSO and that personal or customary law cannot override the statutory protection afforded to a child.The Court further relied upon the Supreme Court’s decision in Independent Thought v. Union of India, which struck down Exception 2 to Section 375 IPC insofar as it excluded wives between 15 and 18 years from the protection against rape. Following the binding precedent, the High Court held that sexual intercourse with a wife below 18 years constitutes rape under Section 376 IPC, irrespective of her marital status. Accordingly, the accused could not invoke marriage as a defence to the alleged offence.

Legal Issue

Whether criminal proceedings for offences under Sections 366 and 376(2)(n) IPC and Sections 6(1) r/w 5(l), 15(1) POCSO Act are liable to be quashed on the ground that the de facto complainant (aged 17 at the relevant time) was the accused's legally wedded wife, and whether Exception 2 to Section 375 IPC shields the accused from prosecution for rape in such circumstances.

Brief Facts

The petitioner (first accused) was charge-sheeted in Crime No. 461/2022, alleging that he kidnapped the victim, a minor girl, took her to his residence, and repeatedly raped her over four days, with the second and third accused (the petitioner's parents) facilitating the offence and the victim's own parents allegedly failing to intervene despite knowledge. The petitioner sought quashing under Section 528 BNSS, contending that the de facto complainant was his wife, married to him under Islamic rites when she was 17 years and one month old, and that Exception 2 to Section 375 IPC (as originally worded) excludes marital sexual relations from rape provided the wife is above 15. The respondents opposed, asserting that the victim, being under 18, was a "child" under the POCSO Act and that the ingredients of the offences were prima facie disclosed.

Court's Reasoning

Applying the settled test under Section 528 BNSS (corresponding to Section 482 Cr.P.C.), that quashing lies only where allegations, taken at face value, fail to disclose the offence, without a mini-trial, the Court found that the FIS allegations of enticement, confinement, and repeated forced intercourse prima facie disclosed the ingredients of the offences charged, and that the existence and validity of the claimed marriage was itself a disputed question of fact (unsupported by documentary proof) properly left to trial.

On the POCSO Act, the Court held that Section 2(1)(d) defines "child" as any person below 18, and Section 42A gives the Act overriding effect over any inconsistent law. Relying on Khaledur Rahman v. State of Kerala [2022 KHC Online 913], the Court reaffirmed that marriage is not excluded from the sweep of the POCSO Act, and personal/customary law stands abrogated to the extent of inconsistency - meaning the wife-status of a minor victim is legally immaterial to POCSO liability.

On the IPC charge, the Court applied the Supreme Court's ruling in Independent Thought v. Union of India [(2017) 10 SCC 800], which struck down Exception 2 to Section 375 IPC as unconstitutional (violating Articles 14, 15 and 21) insofar as it excluded marital rape of wives aged 15–18, and read down the Exception to protect wives up to 18 years. Following this binding precedent, the Court held that sexual intercourse with a wife below 18 constitutes rape under Section 376 IPC regardless of marital status, so the petitioner could not invoke Exception 2 to escape prosecution.

Judgment

The Crl.M.C. was dismissed. The Court declined to quash the FIR, final report, or further proceedings, clarifying that its observations were confined to disposal of the petition and would not bind the trial court's consideration of the case on merits.

Legal Significance

The judgment reinforces that the POCSO Act's protection extends to married minors and overrides personal/customary law to the extent of inconsistency, and reaffirms Independent Thought's reading-down of Exception 2 to Section 375 IPC as settled law, marital status is no defence to rape where the wife is below 18. It underscores that claims of a valid marriage, absent documentary proof, raise disputed factual questions unsuitable for resolution at the quashing stage under Section 528 BNSS.

Link to Official Judgement here 

Case Title

XXXXX v. XXXXX & Ors. 

Case Number

Crl.M.C. No. 8899 of 2024

Citation

2026KER64110

Court

High Court of Kerala at Ernakulam

Bench

Hon'ble Mr. Justice Jobin Sebastian

Date of Judgment

19 August 2026