Allegation Of Child Marriage Doesn't Empower Divorce Court To Direct POCSO FIR: Calcutta High Court
The Calcutta High Court has held that a court hearing a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 cannot travel beyond the limited scope of the proceedings to direct registration of a criminal case under the Protection of Children from Sexual Offences (POCSO) Act.
A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya set aside an order of the Additional District Judge, Contai, which had dismissed a mutual consent divorce petition on the ground that the marriage was a child marriage and further directed the police to register a case under the POCSO Act.
"The Court taking up an application under Section 13B of the Hindu Marriage Act is governed by the parameters of the said provision... Within such limited conspectus, the learned Trial Judge acted de hors jurisdiction in passing the directions regarding registration of a criminal case under the POCSO Act," the Bench observed.
Background
The parties had jointly approached the trial court seeking dissolution of their marriage by mutual consent under Section 13B of the Hindu Marriage Act.
However, the trial court dismissed the petition after finding that the marriage had been solemnised in violation of the Prohibition of Child Marriage Act, 2006. It also directed that a copy of its order be sent to the Officer-in-Charge of Bhagwanpur Police Station to be treated as information under Section 19 of the POCSO Act for registration of a criminal case.
Before the High Court, both the husband and the wife challenged the order and jointly submitted that the trial court had exceeded its jurisdiction.
Court's Findings
Allowing the appeal, the Division Bench held that the trial court was required only to examine whether the statutory requirements under Section 13B of the Hindu Marriage Act had been satisfied before granting or refusing a decree of divorce by mutual consent.
"The Court was only to ascertain whether the yardsticks and tests laid down therein are satisfied and, upon such satisfaction, to pass a decree of divorce by mutual consent," the Bench held.
The Court further observed that the Hindu Marriage Act does not empower a court dealing with a petition under Section 13B to adjudicate upon the validity of a marriage on the ground that one or both parties were minors at the time of marriage.
The Bench noted that under Section 3 of the Prohibition of Child Marriage Act, a child marriage is merely voidable at the option of the contracting party who was a child. Since neither spouse had sought a declaration that the marriage was voidable and had instead sought divorce by mutual consent, the trial court had no occasion to determine the validity of the marriage.
"Both having sought a divorce, thereby implicitly admitting that there was a valid marriage, the marriage between them could not be held even to be voidable," the Court observed.
No Basis To Invoke POCSO
The High Court also found that the pleadings in the mutual consent divorce petition did not contain any allegation disclosing the commission of an offence under the POCSO Act.
"In the absence thereof, the learned Trial Judge acted de hors jurisdiction in taking it upon himself to act as 'any person' within the contemplation of Section 19(1) of the POCSO Act and reporting such non-existent offence," the Bench held.
The Court additionally observed that no case was made out under Section 219 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Judge Cannot Be Complainant And Adjudicator
The Bench also took exception to the fact that the trial judge, who was functioning as the designated POCSO Court in the district, had directed registration of a POCSO case which would ultimately come before him for adjudication.
Accepting the parties' submissions, the Court held that such a course violated the foundational principle of natural justice that no person can be a judge in his or her own cause.
"If the complainant himself becomes the judge adjudicating on the merits of such complaint, it would be a travesty of justice and the judge himself would be acting as judge, jury, executioner, all rolled into one," the Bench remarked.
The High Court allowed the appeal on consent, set aside the trial court's order dated December 23, 2025, and remanded the parties' petition under Section 13B of the Hindu Marriage Act for fresh adjudication on its own merits in accordance with law.
The Bench directed the trial court to decide the mutual consent divorce petition within the timelines prescribed under Section 13B of the Hindu Marriage Act. It further revoked all actions taken pursuant to the impugned order, including any FIR or complaint registered on its basis, and directed the concerned authorities to reverse such actions without insisting upon a certified copy of the High Court's judgment.
Case: Goyram Barman v. Madhumita Barman, FA 46 of 2026, decided on July 20, 2026.