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| Nikah, consent cannot wipe out POCSO charges: HC | | | Early Times Report
JAMMU, Oct 29: In a significant judgment concerning the application of the Protection of Children from Sexual Offences (POCSO) Act to alleged consensual relationships involving minors, the High Court of Jammu and Kashmir and Ladakh has held that marriage, mutual affection or consent cannot automatically erase criminal liability arising from sexual relations with a person below 18 years of age.
Justice Yash Paul Bourney made the observations while dismissing a petition filed by a minor prosecutrix seeking quashing of the charge sheet against a man whom she claimed to have married through a customary Nikah.
The court held that although the circumstances of a relationship may be relevant while considering bail, they cannot by themselves justify quashing criminal proceedings under the POCSO Act.
The case arose from FIR No. 72/2025 registered at Police Station Shalteng under Section 64 of the Bharatiya Nyaya Sanhita and Sections 3 and 4 of the POCSO Act.
According to the investigation, the minor had delivered a child, following which hospital authorities informed the police. The subsequent investigation included medical examination, recording of witness statements and DNA profiling.
The petitioner, through her counsel, maintained that the relationship was consensual and that a customary marriage had already been solemnised.
She contended that she wished to continue her matrimonial relationship and that prosecution of the accused would adversely affect their family life.
Advocate Zarin Ali, appearing for the petitioner, submitted that the prosecutrix had consistently denied any forcible sexual assault and that continuation of the trial would serve no useful purpose.
Government Advocate Numan Idrees Malik opposed the petition, contending that consent was legally immaterial where the prosecutrix was a minor and that disputed questions could not be resolved in proceedings seeking quashing of the charge sheet.
After considering the rival submissions, Justice Bourney observed that the POCSO Act was enacted to protect children against sexual exploitation and that its statutory protection extended to all persons below the prescribed age of consent.
The court also acknowledged the difficult legal questions arising from adolescent relationships, particularly where the parties claim to have voluntarily entered into a relationship and subsequently seek to continue family life.
Referring to judicial discussions concerning a possible Romeo-Juliet exception for genuine adolescent relationships, the court noted the tension between the protective purpose of the legislation and the social realities of such cases.
However, it emphasised that the existing statutory framework could not be disregarded merely because the parties claimed to be in love or had entered into a marriage.
The court observed that the circumstances highlighted by the petitioner could constitute mitigating considerations while deciding bail but could not extinguish the offences alleged in the charge sheet.
It further noted that the petition had been instituted by the minor without representation through a guardian, raising an additional issue concerning her competence to invoke the court's extraordinary jurisdiction.
Finding no merit in the plea, the High Court dismissed the petition, allowing the criminal proceedings to continue in accordance with law.
(JNF) |
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