FIR Under POCSO Act Cannot Be Quashed Merely Because Accused & Victim Married and A Child Is Born: Bombay High Court

The Bombay High Court observed that merely because now the victim has given birth to a child and has married the accused, the acts of the accused cannot be brushed aside as he had the knowledge that the victim was minor, when he took her away from the legal custody of her parents.

There was an alleged love relationship between Applicant-Accused and the minor victim and a child was born out of the physical relationship.

The Bench of Justice Nandesh S. Deshpande and Justice Urmila Joshi-Phalke observed, “Though she states that the said marriage was as per the Muslim rites and religion, but at the time of marriage, she was below 18 years of age. When she delivered the child at the relevant time also, she was below 18 years of age. The fact which cannot be brushed aside is that the applicant No.1 is 29 years of age and at the time of incident, or alleged marriage, he was approximately 27 years of age. At least, he ought to have understood that he should wait till the girl attains 18 years of age. Then in spite of having knowledge that the girl is minor, when he takes her away from the legal custody of her parents, from that point itself he commits the offence. Merely because now the girl has given birth to the child, we are of the opinion that the acts of the applicants cannot be brushed aside.”

Advocate S. V. Sirpurka represented the Applicants, while Advocates Sneha Dhote and Yash Venkatrama represented the Non-Applicants.

Case Brief

The Applicants sought exception to challenge, at the initial stage, the FIR for the offence punishable under Section 64(1) of the Bharatiya Nyaya Sanhita, 2023, under Sections 4(1) and 8 of the Protection of Children from Sexual Offences Act (POCSO Act) and under Sections 9, 10, 11 of Prohibition of Child Marriage Act, 2006.

The Police lodged an FIR against the Applicant as they received information that the victim had delivered a baby boy. The age of the victim at the time of marriage was 17 years and her marriage was solemnized with Applicant-Accused. As per the Police report, she was subjected for the forceful sexual assault when she was minor.

The Applicants submitted that there was a love affair between the Applicant-Accused and the victim and now they are married. It was also contended that if the Applicant-Accused was prosecuted and punished, then she herself and her child would suffer as there was no one to look after them.

The victim had no objection for the same and raised no objection on the ground that the Applicant-Accused has not subjected her for the forceful sexual assault at any point of time. While the State contended that since the Applicant-Accused was 29 years old, he had the knowledge about the age of the victim. It was also submitted that the Applicant-Accused kept physical relationship with the girl, who was admittedly minor. Her consent cannot be considered as a consent within the provisions of the law.

Court’s Observation

At the outset, the High Court referred to the decision of the Supreme Court in Right to Privacy of Adolescents (2025), wherein the Court expressed concerns regarding criminalization of consensual adolescent relationships under POCSO Act. The Bench referred to the Union’s submission that Law is not tailor made for individuals but for society at large and hence, till the time the mischief remains, the relevance of the law remains.

Subsequently, the High Court underscored the object with which the Protection of Children from Sexual Offences Act was introduced. The Court said, “The act ends to achieve this part strengthening legal provisions against child sexual abuse, mandating the reporting of offences to prevent under reporting, establishing special Courts for speedy trials and creating the child friendly legal process that protects the victim’s identity and mental health. The Act was introduced to protect children.”

Further, the Court noted that the victim fell in love with the Applicant-Accused, but she was minor at the time of marriage and delivery of the child and observed that the fact that the Applicant-Accused was 27 years old at the time of the incident ought to have understood that he should wait till the girl attains 18 years of age. “Then in spite of having knowledge that the girl is minor, when he takes her away from the legal custody of her parents, from that point itself he commits the offence. Merely because now the girl has given birth to the child, we are of the opinion that the acts of the applicants cannot be brushed aside”, the Court observed.

Crucially, the Court opined that the consent of the minor was irrelevant and the stand taken by the Central Government before the Apex Court also shows that it would be against the mandate of the Constitution of India, as law is not for the individuals but for society at large.

“In the light of the above object behind the enactment of Protection of Children from Sexual Offences Act, and considering the victim was minor at the time of marriage, as well as when she was subjected for the physical relationship, we, therefore, do not find this is to be a fit case, where we should exercise our powers under Section 482 of the Code of Criminal Procedure by making the case as of exceptional circumstance”, the Court held.

Accordingly, the Application was rejected.

Cause Title: M V. State of Maharashtra (Neutral Citation: 2025:BHC-NAG:9835-DB)

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