Marriage to minor no shield from rape charges under POCSO Act: Bombay High Court

Mumbai: The Bombay High Court has refused to quash a rape case against a 29-year-old man, noting that he cannot be absolved of charges under the POCSO Act merely because he married the minor girl and now they have a child together.

Justices Urmila Joshi Phalke and Nandesh Deshpande of the HC's Nagpur bench, in the order passed on September 26, refused to accept the man's contention that he was in a consensual relationship with the 17-year-old girl and had registered the marriage only when she turned 18.

The court said factual consent in a relationship between or with minors is immaterial under the provisions of the Protection of Children from Sexual Offences (POCSO) Act.

The court rejected the application filed by the man and his family members seeking that the FIR lodged against them in July this year by the Akola police be quashed.

They were booked under provisions of the Bharatiya Nyaya Sanhita, POCSO Act and the Prohibition of Child Marriage Act.

As per the prosecution, the victim was 17 years old when she got married and gave birth to a child in May this year.

The victim was married off to the accused after her family learnt that she had been sexually assaulted by him.

The accused claimed he was in a consensual relationship with the girl and that their marriage was legally registered after she turned 18.

He further claimed that if he is prosecuted and punished, then the victim and their child would suffer, and they wouldn't be accepted in society.

The girl also appeared before the court and said she has no objection to the FIR being quashed.

The bench in its order said the primary objective of the POCSO Act provisions is to protect all children below the age of 18 from sexual assault, harassment and child pornography and to provide a supportive environment for such victims.

"The POCSOA was introduced to protect children," HC said, adding that the question of what should be the age group for adolescent love is pending before the Supreme Court.

In the present case, though the accused and the victim girl say the marriage was performed as per Muslim rites and religion, but the fact remains that she was below 18 years of age at the time, the HC said.

The victim was not 18 years old even at the time when she delivered her baby, it noted.

The accused was 27 years old when he got married and he ought to have understood that he should wait till the girl attains 18 years of age, the court said.

Merely because the girl has now given birth to a child, "we are of the opinion that the illegal acts of the accused persons cannot be brushed aside," the bench said.

"The POCSOA is gender neutral and criminalises sexual activity by those below the age of 18. Under the said Act, factual consent in a relationship between minors is immaterial," the HC said.

It refused to quash the FIR against the man and his family members, noting that it was not a fit case to do so.