BNS Reinforces Age of Consent at 18; Minor’s Cohabitation with Adult Impermissible

Allahabad High Court in Neha & Anr. v. State of U.P. & Ors., Habeas Corpus Writ Petition No. 875 of 2025, delivered a landmark judgment reaffirming the inviolability of the age of consent fixed at 18 years under the Bharatiya Nyaya Sanhita, 2023 (BNS).

The Court categorically ruled that a minor girl’s cohabitation with an adult man, even under the guise of marriage, is impermissible in law. The verdict underscores the judiciary’s unwavering stance that the protection of minors supersedes personal choices in relationships involving sexual conduct, regardless of cultural, social, or marital justifications.

The Bench comprising Justice J.J. Munir and Justice Sanjiv Kumar held that the provisions of the BNS have substantially altered the legal context governing the age of consent and marital exception. The decision harmonises the penal statute with the Protection of Children from Sexual Offences Act, 2012 (POCSO) and constitutional mandates safeguarding minors’ dignity and bodily autonomy.

Background of the Case

The first petitioner, referred to as ‘A’, was a minor girl aged 16 years and nine months at the time of her purported marriage to Mukesh on 3 July 2025. The marriage was solemnised of her own volition, and the union resulted in the birth of a male child on 14 July 2025. However, her father lodged a police complaint at Police Station Rasoolabad, District Kanpur Dehat, leading to Crime No. 271 of 2025 under Section 137(2) of the Bharatiya Nyaya Sanhita, 2023, which criminalises sexual intercourse with a child below 18 years.

Mukesh was arrested and remanded to judicial custody. The minor girl, ‘A’, was detained by the police and produced before the Child Welfare Committee (CWC), Kanpur Dehat. The CWC ordered her lodging in Rajkeeya Bal Grih (Balika), Swarup Nagar, Kanpur Nagar, as she refused to return to her parental home, citing fear for her life. Subsequently, a habeas corpus petition was filed before the High Court by ‘A’ and her infant son through her mother-in-law, seeking release from institutional custody and recognition of her marital status.

Petitioner’s Arguments

The petitioners, represented by Advocate Shakti Shanker Tiwari, argued that:

• The minor girl had married Mukesh voluntarily and was living as his wife.
• The sexual relationship, being within marriage and consensual, did not amount to rape.
• Reliance was placed on K.P. Thimmappa Gowda v. State of Karnataka (2011) 14 SCC 475, where the Supreme Court held that consensual intercourse with a girl aged above 16 years did not constitute rape under the then-prevailing Indian Penal Code, 1860 (IPC).
• It was urged that the minor’s confinement in the welfare home was unjustified since she desired to live with her husband and mother-in-law, who supported her decision.
• The petitioners also pressed for humanitarian consideration, emphasising that the young mother and her two-month-old infant should not be separated or kept in conditions detrimental to their well-being.

Respondent’s Stand

The State, represented by Additional Government Advocate Anil Kumar Mishra, contended that:

• The marriage was void in law as the girl was a minor.
• Cohabitation with a minor amounted to a criminal offence under both the BNS and POCSO Act.
• The petitioner’s reliance on pre-BNS and pre-POCSO precedents was misplaced since the statutory regime has evolved, particularly after the 2013 and 2017 legal reforms, raising the age of consent to 18 years.
• The welfare home’s custody was justified for the girl’s safety and protection until she attained majority.

Issues Before the Court

1. Whether a minor girl’s marriage and cohabitation with an adult man are legally valid under the Bharatiya Nyaya Sanhita, 2023?
2. Whether the minor can claim release from institutional custody to live with her husband?
3. What is the impact of the changed age of consent and marital exception under the new criminal law framework?

Legal Analysis and Findings

1. Rejection of Reliance on Pre-BNS Precedent

The Bench noted that K.P. Thimmappa Gowda was decided in a different statutory context when the age of consent under Section 375 IPC was 16 years. The 2013 Criminal Law (Amendment) Act raised the threshold to 18 years, and the Independent Thought v. Union of India [(2017) 10 SCC 800] decision further clarified that even within marriage, sexual intercourse with a wife below 18 years constitutes rape.

The Court observed that these developments render the reliance on Thimmappa Gowda legally untenable. Under the BNS, the age of consent is firmly fixed at 18 years, eliminating any ambiguity.

2. Clause (vi) of Section 63 BNS: Codified Protection

Quoting Section 63(vi) of the Bharatiya Nyaya Sanhita, 2023, the Court emphasised that sexual intercourse “with or without consent when the woman is under eighteen years of age” constitutes rape. It further noted that Exception 2 explicitly exempts only those acts where the wife is not under eighteen years, thereby cementing legislative intent to criminalise all sexual relations involving minors, even within marriage.

Thus, the petitioners’ argument invoking marital consent was legally void, as the marriage itself was contrary to the Prohibition of Child Marriage Act, 2006 and the substantive criminal law under the BNS and POCSO.

3. The BNS and POCSO Act: Complementary Safeguards

The Court reiterated that permitting a minor to live with an adult husband would expose him to prosecution under the POCSO Act, 2012, which defines a “child” as any person below 18 years and criminalises penetrative sexual assault irrespective of consent. The BNS and POCSO Act must be read harmoniously to ensure complete protection of minors from sexual exploitation under any pretext, including marriage.

4. No Liberty to Cohabit Until Attaining Majority

The Bench held that since the petitioner was under 18 years, she could not legally cohabit with her husband. The only permissible custodial arrangement was to continue housing her in the Rajkeeya Bal Grih (Balika) until she turned 18, i.e., 5 October 2026. The Court categorically stated that “her liberty to cohabit with her husband or live where she chooses will arise only after attaining majority.”

5. Protection and Welfare Measures for the Minor Mother and Infant

While upholding the statutory prohibition, the Court displayed sensitivity to the petitioner’s condition as a lactating mother. It directed:

• The administration of Rajkeeya Bal Grih (Balika) ensured that both the petitioner and her child were provided with proper health, nutrition, and medical supervision.
• Regular visits by a medical officer and a paediatrician at least twice a month.
• Monitoring by a senior lady judicial officer assigned by the District Judge, Kanpur Dehat, to ensure compliance with the Court’s directives.
• Permission for the petitioner’s mother-in-law to meet her regularly, albeit without providing food or external items, to safeguard institutional security.

These directions illustrate a balanced judicial approach — strict enforcement of statutory prohibitions coupled with humanitarian concern for the minor’s welfare

Court’s Final Orders

The High Court disposed of the petition with the following key directions:

1. The detainee (minor girl) shall remain in the custody of Rajkeeya Bal Grih (Balika) until 5 October 2026, when she attains majority.
2. Upon attaining majority, she shall be released forthwith and free to decide her place of residence.
3. Her mother-in-law shall be allowed to visit her regularly under institutional regulations.
4. The welfare home must ensure adequate living, health, and childcare facilities.

The District Judge and Chief Medical Officer shall personally monitor compliance.

Broader Legal Significance

1. Reinforcement of Child Protection Framework

The decision reaffirms that under the Bharatiya Nyaya Sanhita, 2023, the age of consent remains unambiguously 18 years, aligning with the POCSO Act and the constitutional doctrine of protective discrimination for minors. The ruling prevents the dilution of protective statutes through claims of marital or consensual relationships with minors.

2. Decline of “Marital Immunity” in Sexual Offences Involving Minors

Historically, Exception 2 to Section 375 IPC provided marital immunity for sexual intercourse with a wife above 15 years. However, after Independent Thought (2017), and now through Section 63, Exception 2 of the BNS, the legislature and judiciary have closed the door on marital justification for underage sexual relations. This aligns Indian law with international standards such as the Convention on the Rights of the Child (CRC).

3. Judicial Sensitivity and Child-Centric Justice

While upholding the rule of law, the Bench demonstrated compassion towards the petitioner’s unique situation as a minor mother. The order for medical care, visitation rights, and judicial oversight ensures that her human dignity and maternal bond remain protected within lawful boundaries.

This dual approach — firm legality with compassionate enforcement — represents the maturing character of India’s juvenile and child protection jurisprudence.

Conclusion

Allahabad High Court’s ruling in Neha & Anr. v. State of U.P. is a crucial judicial pronouncement under the new Bharatiya Nyaya Sanhita, 2023. It decisively reinforces that the age of consent remains 18, regardless of marital status or individual will. Any sexual act with a minor constitutes rape, and cohabitation with an adult partner cannot be sanctioned by law.

At the same time, the Court’s humane directives concerning the minor mother and her infant mark a compassionate evolution in India’s approach to child rights and justice. By combining constitutional morality with practical welfare measures, the judgment strengthens both the protective shield of the law and the human face of the judiciary.

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