POCSO Act l Courts Can't Legalize Near Majority Relationships In The Name Of Equity: Delhi High Court Refuses To Quash FIR Based On Marriage & Settlement

The Delhi High Court has held that Courts cannot legitimize near majority relationships by crafting exceptions for them when consent of people below 18 is irrelevant as per the POCSO Act.

The Court was considering a Petition seeking quashing of an FIR registered for offences punishable under Section 376 of the Indian Penal Code, 1860, Section 6 of the Protection of Children from Sexual Offences Act, 2012, and Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006.

The Bench of Justice Sanjeev Narula held,".....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. 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. Subsequent developments in the relationship, however compelling in equity, the couple living together, the birth of a child, the victim’s present stance, cannot retrospectively legalise conduct which the law, at the time it occurred, treated as an offence. At this pre-trial stage, where the essential ingredients of the offence are disclosed and there is no patent abuse of process, there is no room for quashing the proceedings."

The Petitioner was represented by Advocate Vishal Kumar, while the Respondent was represented by Additional Public Prosecutor Hemant Mehla.

Facts of the Case

The FIR had its genesis in a call relating to domestic violence received. During the inquiry into this call, the police found that Petitioner No. 1 and Respondent No. 2 were living together as husband and wife. They claimed to have married with the consent of their respective parents. The girl was produced before the Child Welfare Committee which directed that her age be verified and that further investigation be carried out in accordance with law. 

Her date of birth was found to be October 02, 2025 which showed she was a minor at the relevant time. In her statement, she neither made any allegation of sexual assault against the husband, nor attributed any coercion or violence to him, and expressly stated that she didn’t wish any legal action to be taken against her husband or her in-laws. She was also medically examined which revealed that she was two and a half months pregnant. 

Reasoning of the Case

The Court took note of the fact that the victim doesn’t support the prosecution’s version and seeks closure of the present proceedings, which, if attributed as being “tied to a young family”.

However, the Court pointed out that it is precisely the kind of matter in which the statutory framework of POCSO Act sits uneasily with the lived reality and the tension between the two is stark.

"The difficulty is that the legal position is not ambivalent. At the time of the incident, the victim was indisputably a child as per the definition under the POCSO Act. The statutory scheme of the Act proceeds on a clear and deliberate premise. Section 2(1)(d) defines a ‘child’ as any person below the age of 18 years. The offence-creating provisions, such as Sections 3 and 7, criminalize specified sexual acts ‘with a child’. Unlike Section 375 of the IPC, these provisions do not employ expressions such as ‘without her consent’ or ‘against her will’ as ingredients of the offence. Once it is shown that the victim was below 18 years of age on the date of the occurrence and that the physical acts described in the charge fall within the contours of Sections 3 or 7, the offence is, in principle, complete", the Court observed.

The Court clarified that the Act doesn’t treat absence of consent as a constituent element when the victim is a child.

It emphasised that the Supreme Court, while examining the allied questions under the IPC and POCSO, has consistently recognised that consent of a person below the statutory age has no legal efficacy in the context of sexual offences.

"The philosophy that underlines POCSO is that of heightened protection, 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 observed.

It thus stressed that 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.

"....The present case does not involve only two young persons who chose to live together; the parents of both sides stand arraigned under the Prohibition of Child Marriage Act, 2006 on the allegation that they facilitated or condoned a marriage involving a minor girl. An order quashing the prosecution in such circumstances would almost 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", the Court ruled.

The Petition was accordingly dismissed.

Cause Title: Prince Kumar Sharma and Others v. The State NCT of Delhi (2025:DHC:10080)

Appearances:

Petitioner- Advocates Vishal Kumar, Pawan Kapoor and Shubhangi Singh

Respondent- Additional Public Prosecutor Hemant Mehla 

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