Marriage In Ignorance Of POCSO Act May Not Be Disrupted: Allahabad High Court Asks Law Commission To Recommend Amendments

The High Court was considering a petition filed by the petitioner seeking production of the second petitioner (corpus) in a case registered under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The first petitioner is the accused, and the second petitioner is the survivor.

The Bench comprising Justice Atul Sreedharan and Justice Achal Sachdev held, “This issue perhaps has already been raised before the legislature, which is responsible for ensuring that appropriate changes are made in the law. Yet, the legislature appears to have remained consistently silent on the matter. Even earlier, the Law Commission had been apprised of the gross injustice that can result from the strict application of the provisions of the POCSO Act.”

“Under the circumstances, the Court considers it necessary to request the Law Commission to examine these factors and facets in the context of Indian social realities and to recommend suitable amendments to the POCSO Act for consideration by the legislature. Such amendments may include vesting the Special Judge with adequate discretion in exceptional cases, such as the present one, to consider the circumstances of the case while determining the appropriate punishment. The possibility of alternative forms of punishment, including community service, may also be examined, so that a family formed in circumstances arising from ignorance of the provisions of the POCSO Act is not unnecessarily disrupted in the very name of protecting girls and women below the age of 18 years”, it added.

Advocate Rakesh Kumar Mishra represented the Petitioner while Government Advocate represented the Respondent.

Factual Background

The petitioners had eloped together and were stated to have jointly executed an affidavit, wherein they disclosed their marital status as husband and wife. It was the case of the father of the prosecutrix that the date of birth of the prosecutrix is July 25, 2010 and, accordingly, she is still a minor. It was further submitted that, upon her recovery, the corpus was sent to the Bal Griha, where she subsequently gave birth to a child.

Reasoning

The Bench was of the view that instances such as the present one arise on account of abject illiteracy coupled with poverty prevalent amongst a predominant section of the population, which, owing to lack of awareness and understanding of the law, may result in acts being committed in violation of the provisions of the POCSO Act. “Such acts may otherwise be regarded as legitimate but for the age of the prosecutrix concerned. However, ignorance of law cannot be an excuse for violating the law”, it added.

The Bench further found that the corpus/prosecutrix had studied only up to Class V. In an interaction with the Court, the prosecutrix mentioned that she could neither read nor write in Hindi except her name. Upon being asked whether the father of the prosecutrix could sign his name, he stated that he was illiterate and had never attended school.

The Bench thus stated, “The necessity of setting out the background of the prosecutrix/corpus and her family was felt by this Court because the actions of the parties are required to be considered in the backdrop of the provisions of the POCSO Act, the full and literal application of which may, in certain circumstances, have serious repercussions and consequences. Undoubtedly, ignorance of law is no excuse. However, if this principle is applied in a purely pedantic manner, the implementation of the POCSO Act may, in certain factual situations, result in consequences which may appear to advance injustice rather than justice.”

The Bench further expressed shock over the fact that a child who, had studied up to Class V, was nevertheless unable to read a newspaper in her mother tongue. “It is even more disturbing that she stated that she could only put her signature and could not write anything more than that in Hindi”, it added.

The Bench was of the view that the Trial Court ought not to be placed in a situation where, for want of sentencing discretion, it was compelled to impose a stringent punishment upon a person who is presently the husband of the prosecutrix and the father of her child, merely because he had eloped with her before she attained majority.

Considering that the petitioner is a major and has expressed her desire to reside with her husband, the Bench allowed the petition and ordered, “The corpus is permitted to go along with her husband (petitioner No.1) from the Court premises itself.”

Cause Title: A v. State Of U.P. And 4 Others (Neutral Citation: 2026:AHC:207289-DB)

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