Delhi HC refuses to quash sexual assault case against man who later married minor girl

The Delhi High Court has refused to quash a sexual assault against a man, who married the minor girl, saying her wish to continue living with him and the criminal liability for the alleged acts are distinct in the eyes of law.

The high court said the Protection of Children from Sexual Offences (POCSO) Act was enacted to afford children special protection against sexual abuse and exploitation.

“Parliament has deliberately fixed an age (18 years) below which consent to sexual activity has no legal efficacy. The protection does not depend upon proof of force, coercion or deception, or upon an assessment of whether the particular child was sufficiently mature to understand the relationship,” Justice Sanjeev Narula said in a judgement passed on November 4.

The high court referred to a judgement of the Supreme Court which has made clear that marriage does not remove the protection which the penal law affords to a child.

“The victim’s wish to continue living with the petitioner, her mother’s support for that choice and the welfare of the child have received due consideration.

“The court does not doubt the sincerity of their request or overlook the hardship that continuation of the proceedings may entail for the family. Those considerations, however, do not answer the allegations or furnish an independent ground for quashing a prosecution of this nature,” it said.

The court added that the girl’s wishes and the question of criminal liability for acts allegedly committed during her minority are distinct in the eyes of law.

The high court was hearing the man’s plea seeking quashing of an FIR registered in 2023 for the alleged offences of kidnapping and sexual assaulting the minor under the Indian Penal Code and the POCSO Act.

The petition was based on a settlement between the parties and their subsequent matrimonial relationship.

According to the FIR, the girl’s mother lodged a complaint that her 15-year-old daughter had gone missing in February 2023. The girl was traced in December 2023 and was found to be pregnant.

In her statement before a magistrate, the girl stated that she had voluntarily accompanied the man and established physical relations with him of her own will.

The man’s counsel submitted that the couple got married in February 2023 and a child was born to them in June 2024 and that they were happily living together as a family.

However, the prosecutor opposed the plea saying that the school records showed the girl was born on March 15, 2008, making her around 14 years and 10 months old when she left home in February 2023.

The prosecutor contended that the allegations disclosed serious offences under the IPC and the POCSO Act and that the subsequent marriage and settlement could not furnish a lawful basis for terminating the prosecution.

The high court observed that the material on record prima facie established a physical relationship between the man and the girl, while the petitioner also acknowledged being the child’s father.

“These circumstances provide a substantial prima facie foundation for the allegation of penetrative sexual assault and the aggravated circumstance contemplated under Section 5(j)(ii), punishable under Section 6 of the POCSO Act,” it said.

The court said under the POCSO Act, a child is defined as a person below 18 years of age and that penetrative sexual assault upon a child resulting in pregnancy constitutes an aggravated offence.

However, the court held that the said humanitarian considerations could not independently justify quashing a prosecution involving serious allegations under the POCSO Act.

The high court left it open to the man to approach the Supreme Court and seek the relief as may be available in its extraordinary jurisdiction under Article 142 of the Constitution, while clarifying that it was expressing no opinion on whether such relief would be warranted.