HC refuses to quash case against man accused of sexually assaulting wife who was minor

New Delhi, Nov 20 (PTI) The Delhi High Court has refused to quash a case against a man, accused of sexually assaulting a minor girl who is married to her, saying the court cannot carve out an exception in the statute which criminalises sexual relations with minor.

The court said it is moved by the circumstances, but it is bound by the statute and this is one of those hard cases where the pull of equity is strong but the command of the statute is stronger.

The court was dealing with a plea in which a man and his parents sought quashing of criminal case lodged against them for the offences under the Protection of Children from Sexual Offences (POCSO) Act and Prohibition of Child Marriage Act after the victim said she does not want any action against her husband, with whom she has a child, and in-laws and that she was never sexually assaulted.

Justice Sanjeev Narula refused to quash the FIR, lodged in 2023, saying that to snuff out the prosecution at the threshold would risk sending a messaging that child marriages and sexual relationships with minors can be sanitised by arranging a ceremony and continuing cohabitation.

The high court said quashing the case in such circumstances would inevitably be perceived as judicial endorsement of the notion that underage marriages can be insulated from legal consequences, so long as the parties subsequently present themselves as a settled family.

It said courts cannot create exceptions for “near majority consensual relationships” when consent of a person below the age of 18 years is irrelevant under the POCSO Act.

“Under the POCSO Act, read with the then prevailing provisions of the IPC, any sexual act with a person under 18 is criminalised per se, without importing ‘consent’ as a constituent element once the victim is a child," it said.

The judge said since the Parliament has fixed 18 as the age below which the law refuses to recognise sexual consent, this court, exercising jurisdiction under Article 226 of the Constitution, in the guise of doing equity, cannot write in a judge-made exception for ‘near- majority, consensual relationships’.

To do so would be to cross the line from interpretation into legislation, the court said.

It added that subsequent developments in the relationship involving a minor, however compelling in equity, including the couple living together, birth of a child, and the victim's present stance of no objection cannot retrospectively legalise conduct which the law, at the time it occurred, treated as an offence.

It observed that the philosophy that underlines POCSO is that of “heightened protection”, and not neutrality in respect of adolescent sexuality.

“Courts may, therefore, be slow to use the language of 'consensual sex' where one party is a child in terms of the statute. The proper inquiry in such cases is not whether the minor consented, but whether the prosecution has established the child's age and the occurrence of the proscribed act; once those elements stand proved, the supposed consent of the minor cannot be invoked as a defence to criminal liability,” the court said.

The genesis of the FIR was a call related to domestic violence. During inquiry, the police found that the man had married the girl when she was 16 years and 5 months old with the consent of their parents and they were living together as husband and wife.

The girl, now an adult, appeared in the court with her baby and said that the relationship was voluntary and urged the court to close the case.

The court refused to quash the FIR but observed that seeing the victim with her infant child brought home that the proceedings were tied to the stability of a young family.

On the other hand, the court said the situation was precisely the kind of matter in which the statutory framework of the POCSO Act sits uneasily with lived reality and the tension between the two is stark.

The court said this case was not a borderline matter of age determination and the woman’s pregnancy, as a result of sexual intercourse with the man, leaves no real dispute about the occurrence of the sexual act.

Once it is accepted that she was below 18 years of age at the relevant time, the case falls squarely within the ambit of the POCSO Act, it said.

The court said this case does not involve only two young persons who chose to live together but their parents also stand arraigned under the Prohibition of Child Marriage Act on the allegation that they facilitated a marriage involving a minor girl.

It said courts cannot ignore the possibility that what appears as voluntary acquiescence by a 16-year-old may be the product of familial pressure or community expectations, especially once pregnancy has occurred. PTI SKV NB