New Delhi: The Meghalaya High Court last Wednesday quashed a case registered against a man under the Protection of Children from Sexual Offences (POCSO) Act, 2012, for marrying a 16-year-old girl, observing that it would be an “injustice” to separate a “well-knitted family unit”.
A single-judge bench of Justice W. Diengdoh exercised its extraordinary powers to quash the criminal case in view of the “peculiar facts and circumstances” of the matter.
The order, which came on a petition filed by the husband to quash the case, is among a string of recent verdicts where courts have intervened to end POCSO cases in an attempt to “save marriages”.
In this particular case, the girl and the accused had been courting for a year and had married in 2019 with the permission of the girl’s family. The girl was around 16 years of age at the time of marriage.
In November 2019, an FIR under the POCSO Act was lodged against the husband when it was confirmed by a local hospital that the girl was pregnant. Since sexual intercourse with a minor is considered as “statutory rape”, the hospital insisted that an FIR be lodged, which was done on the basis of a complaint filed by the girl’s mother.
In its judgment, the Meghalaya HC borrowed jurisprudence from other HCs that have quashed similar POCSO cases involving a consenting minor.
The Meghalaya HC itself had in March this year quashed a POCSO case on similar grounds. In this case, the court noted that POCSO is a special legislation enacted to address sexual offences against children as they were not adequately addressed by other laws.
Taking note of the unique facts and circumstances of the case, the court held that allowing prosecution would “only result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support, physically or financially from her husband who may be languishing in jail”.
Speaking to ThePrint, senior advocate Vibha Makhija said that high courts can exercise their exclusive jurisdiction to quash such complaints.
Makhija further said that while offences under POCSO are “non-compoundable”, the high court possesses inherent jurisdiction under Section 482 of the Code of Criminal Procedure (CrPC) to quash a criminal proceeding in extraordinary circumstances.
“Every case is unique and must be decided on its peculiar facts. Criminal cases touching on family and social fibre stand on a different footing from other prosecutions. Where the high court has such facts on record which clearly exhibit that the criminal prosecution will result in greater injustice, it may very well decide to quash such an FIR,” she added.
However, there have been also been orders where courts have refused to set aside criminal prosecution of men who enter into consensual relationships with minor girls and marry them.
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What the law says
By law, a minor’s consent is a nullity, and s/he cannot thus ‘consent’ to sexual activity.
In 2013, Parliament had amended Section 375 of the Criminal Law (Amendment) Act to raise the ‘age of consent’ from 16 to 18. However, Exception 2 to Section 375 of the Indian Penal Code (IPC) decriminalised sexual intercourse “by a man with his own wife” who is over 15 years of age.
This created an anomalous situation where sexual intercourse in a child marriage, with the minor girl being between 15 and 18 years, was virtually “permissible”.
In a landmark judgment in 2017, Independent Thought vs Union of India, though, the Supreme Court had read down Exception 2 to Section 375 of the IPC, increasing the age of consent even in marriages to 18.
Other high courts ‘saving marriages’
In September 2021, the Calcutta HC had acquitted a man booked under POCSO, after holding that “voluntary sexual union” will not attract the law. The court held that “penetration” under the POCSO definition must mean a “positive, unilateral act” on the part of the accused. If sexual intercourse was participatory, there is no need to indict only the male, the court had said.
Earlier this year, in February, the Delhi High Court had quashed a similar FIR, considering that the life of the husband, wife, and child would be “ruined”. As did the Bombay High Court, in June, quashing an FIR considering the accused and the victim’s “future” and in the interest of a “peaceful life”.
Notably, the Allahabad High Court said in February that the POCSO is not intended to prosecute “teen romance”.
Senior advocate Geeta Luthra believes the law must adapt and lower the age of consent in keeping with worldwide trends.
“Young children are maturing faster — the age of consent, age to determine statutory rape, age for driving is being decreased to 16 all over the world. It is time we reconsider our legal choices and evaluate them against the changing societal needs,” she said to ThePrint.
“While an offence continues to be an offence, girls and boys will continue to fall in love, and the law needs to consider what treatment it accords to cases that are consensual versus gruesome cases that require the highest punishment,” she added.
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Inconsistency in orders
However, court orders on the subject are not uniform and high courts across the country have exhibited a fairly inconsistent trend while deciding on the subject.
Earlier this year, the Supreme Court had set aside a high court order granting bail to the accused in a similar matter.
The division bench of Justice D.Y. Chandrachud and Surya Kant had held that once it “prima-facie” appears that the victim is a minor at the time of the offence, the “love affair” was an irrelevant consideration for grant of bail.
Consider another case, decided by Justice Anoop Mendiratta of the Delhi HC, with similar facts and circumstances — in this, he was dealing with a case of a consensual physical relationship of which, subsequently, a child was born.
Denying bail to the accused, he had held that the consent of the minor was “immaterial and inconsequential” in law. Mere tying of the knot and a resulting pregnancy would not mitigate or sanctify the act of the accused.
He further said that the claimed “consent of the minor” cannot be treated in a routine manner as the act of rape was not only a crime against the victim, but a crime against society at large.
“The girl faces several adverse challenges if she is married when below 18 years of age,” he had added.
A Gujarat HC ruling on similar lines noted that eloping with a minor girl is an offence and subsequent marriage does not “wipe out” the offence under the POCSO Act.
Courts have acknowledged a lack of awareness among the youth on POCSO, leading to a rise in registration of cases under this special law brought in to curtail sexual abuse of children.
Concerned over a growing number of youngsters cohabitating consensually, despite it being a crime, judges have insisted on educating minors in schools to highlight the dangers of underage marriage and to avoid unnecessary conflicts with the provisions of the special legislation.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.
(Edited by Zinnia Ray Chaudhuri)
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