The Jammu & Kashmir and Ladakh High Court has dismissed a petition filed by a minor rape victim seeking quashing of the charge-sheet against the accused in a POCSO case, holding that a consensual relationship, a Nikah and the wish of the parties to live together as husband and wife may at best be mitigating factors for grant of bail, but cannot be a ground to quash the charge-sheet.

The Court, while acknowledging that the POCSO Act had created a “grey area” by criminalizing consensual adolescent relationships after the age of consent was raised from 16 to 18, held that the accused could not escape the consequences of his conduct, as he was fully aware of the victim’s age.

The Bench of Justice Yash Paul Bourney observed, "The case set up by the petitioner victim that both of them are madly in love and have already entered into Nikah. She has further contended that she has already moved to and is presently staying in her matrimonial home. She has claimed that her parents were well aware and they neither objected to their relationship and nor complained to anybody about their relationship. Even if all these factors are taken together still the offence for which accused has been charge sheet does not get wipe out. All these factors can at the best be described as the mitigating factors entitling the accused to bail, but cannot be reason to quash the charge sheet." 

Advocate Zarin Ali appeared for the Petitioner, while Government Advocate Numan Idrees Malik appeared for the Respondents

Brief Facts

The petitioner, a minor and the victim of an alleged rape, filed a plea before the High Court under Section 528 of the BNSS seeking quashing of the charge-sheet filed against the accused for the offences under Section 64 of the BNS and Sections 3/4 of the POCSO Act, 2012. The matter was pending trial before the Special Judge, POCSO Court, Srinagar.

The FIR was registered on a zero FIR received from Police Station Pattan, which was based on telephonic information given by a doctor of the Sub District Hospital, Pattan. The doctor informed that a minor girl had delivered a female baby in the maternity ward and was accompanied by her mother and the accused.

During investigation, the statements of the victim, her parents and other material witnesses were recorded, and the accused was arrested. The DNA samples of the victim, the newborn and the accused were sent to the FSL, and the report confirmed that the accused was the biological father of the newborn.

The investigation further revealed that the victim was about sixteen years of age at the time of delivery, that the accused was a distant relative who frequently visited her house and sometimes stayed overnight, and that he had developed physical intimacy with her and had repeated sexual intercourse with her, resulting in pregnancy. Upon completion of the investigation, the charge-sheet was filed. Charges were framed against the accused, and the victim was yet to depose as a witness.

Contentions of the Parties

The petitioner contended that she had maintained from the very beginning that she was the legally wedded wife of the accused, that their customary Nikah had been solemnized in accordance with Muslim Personal Law, and that only the Rukhsati had not taken place.

It was submitted that the parties were in love and that the physical relationship was purely consensual, resulting in pregnancy, and that the accused had accompanied the petitioner and her mother to the hospital.

It was argued that the relationship being consensual, there was no question of force or deceit so as to attract the ingredients of the alleged offence. It was further submitted that the parties wished to lead a happy married life, which was being hampered by the continued incarceration of her husband, and that the discrepancy of a few years between her actual age and the age recorded in the school admission records had caused the confusion.

Per contra, the State vehemently opposed the petition on the ground that the petitioner had no locus standi to invoke the extraordinary jurisdiction of the Court and that the petition involved disputed questions of fact and law, which could not be adjudicated in such jurisdiction.

It was contended that the victim was a minor who had been subjected to sexual intercourse by the accused, and her consent was immaterial, irrespective of what she stated, owing to her precarious position.

Observations/Findings of the Court

The Court observed at the outset that the initial report to the police had not been lodged by the victim or her parents or relatives, and that the accused had been accompanying the victim at the time she was taken to the maternity hospital for delivery. It was the doctor concerned who informed the police on finding the girl to be a minor.

The Court noted that the victim, in her statement before the Magistrate under Section 164 CrPC, had not been able to state her exact date of birth. She had stated that she was above eighteen years of age as per the vaccination card but sixteen years as per her Aadhaar card.

The Court observed that it was thus a case where the victim and the accused had fallen in love and solemnized a Nikah though she was a minor at that time, and that they had lived together as husband and wife, resulting in pregnancy and delivery, for which nobody had any grievance. Neither the victim nor her parents had ever complained of sexual exploitation. 

"It is often contended by the stringent provisions of POCSO Act operate too harshly against the male partners who have just crossed-over the age bar notwithstanding the fact that a female partner was an equal partner to the sexual intimacy when the relationship was simply consensual. Confronted with such situations, Hon'ble Supreme Court has time and again emphasized that criminal courts must not ignore the social realities and the judicial processes must support the survival and protection of the families rather than mechanical punitive actions since the future of a family is at stake especially when the parties wish to live peacefully", the Court observed.

The Court referred to the decision of the Supreme Court in State of UP v. Anurudh & Anr. (2026), wherein the High Court’s view in Satish alias Chand v. State of UP was approved, laying down four factors to be considered in a prosecution under the POCSO Act, namely assessing the context, considering the victim’s statement, avoiding perversity of justice, and exercising judicial discretion wisely.

The Court noted that the Supreme Court had further called upon the Secretary, Law, Government of India, to consider introducing a Romeo-Juliet clause exempting genuine adolescent relationships from the Act.

It was observed, "The cases of young couples having indulged in physical intimacy and the female partner being eventually found short of age of majority while as the male partner having landed in the dragnet of law on are not uncommon ever since the enactment of the POCSO Act, 2012. One of the much-avowed objects of the enactment has been to protect the children from sexual abuse and exploitation. This provision, though definitely intended to target sexual exploitation of children, however, has created a grey area as it has definitely resulted in criminalizing consensual adolescence/teenage relationship and after the POCSO Act raised the age of consent from 16 to 18."

Applying the above principles, the Court observed that the prosecutrix was hardly sixteen years of age when she became involved in a physical relationship with the accused, and though the parties were in a romantic relationship, she fell within the definition of a “child” under the POCSO Act, and sexual intercourse with her attracted the offence under the Act as she had not attained the age of consent.

The Court held that the accused could not escape the consequences of his errant behaviour, as he was fully aware of the age of the petitioner.

The Court further observed that, even taking into account the plea that the parties were deeply in love, had entered into a Nikah, that the victim was staying in her matrimonial home, and that her parents were aware of the relationship and had neither objected nor complained, the offence for which the accused had been charge-sheeted was not wiped out. 

The Court accordingly found no merit in the petition and dismissed it.

Cause Title: XXXX v. Union Territory of JK & Ors. [Neutral Citation:2026:JKLHC-SGR:368]

Appearances:

Petitioner: Advocate Zarin Ali

Respondents: Government Advocate Numan Idrees Malik

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