Can't legalise near-majority consensual relationships: Delhi High Court refuses to quash POCSO case

While rejecting a quashing petition filed by a husband in a Protection of Children from Sexual Offences (POCSO) Act case instituted by his wife, the Delhi High Court recently stated that it cannot give judicial endorsement to underage marriages [Prince Kumar Sharma And Others v. The State NCT of Delhi and Another]..Justice Sanjeev Narula observed that an offence under the POCSO Act is complete once sexual intercourse is proved with a child below 18 years of age.“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, cannot, in the guise of doing equity, 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..The Court was hearing a plea filed by man seeking to quash a case against him filed under Section 376 of the Indian Penal Code (rape), Section 6 of the POCSO Act (aggravated penetrative sexual assault) and Sections 9 (punishment for male adult marrying a child) and 10 (punishment for solemnising a child marriage) of the Prohibition of Child Marriage Act, 2006.The first information report (FIR) was registered after the wife's complaint of domestic violence. It was found that the man's wife was a minor and pregnant at the time of the incident. The wife, who gave birth to their child, later retracted her allegations, stating that they are now a family..The Court stated that subsequent deepening of relationship between the couple cannot retrospectively legalise the offence under the POCSO Act. The possibility of the minor's consent may be the product of familial pressure, it said.Thus, the Court refused to quash the proceedings against the husband, observing that doing the same would be perceived as a judicial endorsement that underage marriages can be insulated from legal consequences.“To snuff out the prosecution at the threshold would risk sending a message that child marriages and sexual relationships with minors can be retrospectively sanitised by arranging a ceremony and continuing cohabitation. That would sit squarely at odds with the legislative purpose of both POCSO and the child marriage law, which is to deter early marriage and sexual exploitation of children,” the Court observed. It went on to note,"The Court is not indifferent to the victim’s wish to protect her family. In fact, this Court is moved by the circumstances, but it is bound by the statute. This is, therefore, one of those hard cases where the pull of equity is strong, but the command of the statute is stronger. This Court, for securing the ends of justice, cannot carve out an exception to the statute merely because the victim describes the relationship as consensual.".Advocates Vishal Kumar, Pawan Kapoor and Shubhangi Singh appeared for the petitioner. Additional Public Prosecutor Hemant Mehla appeared for State..[Read judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.