Courts Can't Create Exceptions For 'Near Majority Consensual Relationships' When Consent Irrelevant Under POCSO Act: Delhi High Court
The Delhi High Court has observed that Courts cannot create exceptions for “near majority consensual relationships” when consent of a person below the age of 18 years is irrelevant for the purpose of POCSO Act.“Under the POCSO Act, read with the then prevailing provisions of the IPC, any sexual act with a person under 18 is criminalised per se, without importing “consent” as...
The Delhi High Court has observed that Courts cannot create exceptions for “near majority consensual relationships” when consent of a person below the age of 18 years is irrelevant for the purpose of POCSO Act.
“Under the POCSO Act, read with the then prevailing provisions of the IPC, any sexual act with a person under 18 is criminalised per se, without importing “consent” as a constituent element once the victim is a child. Since the Parliament has fixed 18 as the age below which the law refuses to recognise sexual consent, this Court, exercising jurisdiction under Article 226 of the Constitution, cannot, in the guise of doing equity, write in a judge-made exception for “near- majority, consensual relationships.” To do so would be to cross the line from interpretation into legislation,” Justice Sanjeev Narula said.
The Court said that subsequent developments in the relationship involving a minor, however compelling in equity, including the couple living together, birth of a child, and the victim's present stance of no objection cannot retrospectively legalise conduct which the law, at the time it occurred, treated as an offence.
It observed that the philosophy that underlines POCSO is that of “heightened protection”, and not neutrality in respect of adolescent sexuality. “Courts may, therefore, be slow to use the language of 'consensual sex' where one party is a child in terms of the statute. The proper inquiry in such cases is not whether the minor consented, but whether the prosecution has established the child's age and the occurrence of the proscribed act; once those elements stand proved, the supposed consent of the minor cannot be invoked as a defence to criminal liability,” the Court said.
Justice Narula refused to quash an FIR under the POCSO Act, IPC and the Prohibition of Child Marriage Act against a man and his family members.
The man and his family filed the petition for quashing of the FIR lodged after the police found that him and the girl, then 16 years and 5 months old, were living together as husband and wife. The girl, now an adult, appeared in Court with her infant and said that the relationship was voluntary. She thus urged that the case be closed.
Dismissing the plea, the Court said that seeing the victim with her infant child brought home that the proceedings were tied to the stability of a young family.
At the same time, the Court said, that the situation was precisely the kind of matter in which the statutory framework of the POCSO Act sits uneasily with lived reality and the tension between the two is stark.
It observed that at the time of the incident, the victim was indisputably a child as per the definition under the POCSO Act and that the legislation does not treat absence of consent as a constituent element when the victim is a child.
The Court was of the view that where the prosecution establishes the foundational facts that the accused committed the acts charged under the relevant provisions with a person who is a 'child', the Court is required to presume that the accused has committed the offence and that the requisite culpable mental state was present, unless the contrary is proved.
“The present case is not a borderline matter of age determination, nor is there any genuine doubt on this aspect emerging from the record. The pregnancy of the victim, as a result of sexual intercourse with Petitioner No. 1, leaves no real dispute about the occurrence of the sexual act. Once it is accepted that she was below 18 years of age at the relevant time, the case falls squarely within the ambit of the POCSO Act,” the Court said.
It concluded that at the pre-trial stage, where the essential ingredients of the offence were disclosed and there was no patent abuse of process, there was no room for quashing the proceedings in the matter.
“To snuff out the prosecution at the threshold would risk sending a message that child marriages and sexual relationships with minors can be retrospectively sanitised by arranging a ceremony and continuing cohabitation. That would sit squarely at odds with the legislative purpose of both POCSO and the child marriage law, which is to deter early marriage and sexual exploitation of children,” the Court said.
Justice Narula said that it was one of those hard cases where the pull of equity was strong, but the command of the statute was stronger.
This Court, for securing the ends of justice, cannot carve out an exception to the statute merely because the victim describes the relationship as consensual, the Court held.
Title: PRINCE KUMAR SHARMA AND OTHERS v. THE STATE NCT OF DELHI AND ANOTHER
Citation: 2025 LiveLaw (Del) 1550