Court rules consent immaterial under POCSO Act for sexual intercourse with minor; rejects quashing plea by minor victim seeking to protect accused husband
In a significant judgment delivered on October 28, 2026, the Jammu & Kashmir and Ladakh High Court, presided over by Justice Yash Paul Bourney, dismissed a petition filed by a minor victim seeking to quash the charge-sheet against her husband accused of sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The case involved a minor girl, aged 16 years and 3 months at the time of delivery, who had solemnized a customary Nikah with the accused, a distant relative, and claimed that their relationship was consensual and based on mutual love.
The petitioner's counsel argued that since the relationship was consensual and the parties were legally married under Muslim Personal Law, the charge-sheet against the accused should be quashed. The petitioner also contended that she was the star witness of the prosecution denying any force or deceit and that the continued incarceration of her husband was unjustified.
However, the High Court underscored that under the POCSO Act, the consent of a minor to sexual intercourse is legally immaterial, irrespective of the relationship's consensual nature or the existence of a Nikah. The court observed that the law explicitly protects children under 18 years from sexual exploitation, and any sexual act with a minor constitutes an offence, regardless of mutual affection or marital status.
The court also highlighted the socio-legal complexities arising from the stringent provisions of the POCSO Act, which criminalize consensual adolescent relationships following the increase of the age of consent to 18 years. The judgment referenced the Supreme Court's advocacy for a "Romeo-Juliet" clause to carve out exceptions for genuine adolescent relationships, though it noted that until such legislative amendments are enacted, courts must apply the law as it stands.
Further, the court held that the minor victim was not competent to file the petition on her own without the representation of a guardian, rendering the petition non-maintainable on this procedural ground as well.
The judgment concluded that while the circumstances of consensual relationship, marriage, and cohabitation might be relevant mitigating factors in bail considerations, they do not justify quashing the charge-sheet. The accused must face trial to answer the charges under the POCSO Act and related provisions.
This ruling reaffirms the judiciary's firm stance on protecting minors against sexual offences while acknowledging the need for legislative reforms to address consensual adolescent relationships more sensitively.
Bottom Line:
POCSO Act - Minor victim seeking quashing of charge-sheet against accused on plea of consensual relationship and nikah - Held, even if relationship was consensual and parties were in love, consent of minor is immaterial under POCSO Act - Such circumstances may at best be mitigating factors for bail, but cannot justify quashing of charge-sheet - Further held, minor victim filing petition on her own without guardian was not competent to invoke inherent jurisdiction under Section 528 BNSS.
Statutory provision(s):
Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528, Protection of Children from Sexual Offences Act, 2012 Sections 3, 4, Bharatiya Nyaya Sanhita, 2023 Section 64
XXXX v. Union Territory of JK, (J&K And Ladakh) : Law Finder Doc Id # 3006483
