Consent irrelevant, age of survivor is deciding factor for prosecution in POCSO cases: Delhi High Court

New Delhi: The Delhi High Court has held in a POCSO case, the plea of consensual relationship was legally immaterial as the age of the survivor was the decisive factor.

Justice Sanjeev Narula observed a plea of consensual relationship raised by a person, facing prosecution for sexually assaulting a minor, was legally immaterial as the age of a survivor was the decisive factor under the POCSO Act.

"This plea of consensual relationship is legally immaterial. Under the POCSO Act, the age of the survivor is the decisive factor, and if the survivor is below 18 years of age, the law presumes that she is incapable of giving valid consent," the court said.

The judge went on to add in the February 3 order, "The alleged consensual nature of the relationship is, therefore, prima facie irrelevant for the purpose of prosecution under the POCSO Act."

The court therefore denied bail to a 26-year-old man accused of sexually assaulting his 15-year-old neighbour in 2024, aside from administering her medicines to terminate her pregnancy.

The man, who was already married and has a daughter, said the survivor was 18 and their relationship was consensual.

He also relied on the survivor's statement in which she said she was 18.

The high court said the impact of the statement would have to be tested during trial once the parties have led evidence.

"However, at this stage, the court cannot disregard the school records, which categorically mention the date of birth of the prosecutrix as August 3, 2008," it said.

The high court said the nature of the offence, the age disparity between the parties and the fact that the trial was still ongoing with key public witnesses yet to be examined, were factors that couldn't be overlooked.

"Considering the gravity of the offence, the potential for influencing the witness, and the stage of the trial proceedings, the court is not inclined to grant bail to the applicant," it added.