From Rigid Law To Lived Reality: Delhi High Courts' Guidelines On Quashing Consensual POCSO Cases

The facts in Harmeet Singh v. State (GNCT of Delhi) are not new. A 22 year old man and a 17 year old girl entered into a relationship, the girl got pregnant, so they married and had the child. The criminal process was set in motion not by complaint of the girl, but by the hospital where delivered her baby, under the mandatory reporting requirements of Section 21 of the POCSO Act. The young woman consistently maintained that the relationship was consensual, that she had no grievance, and that prosecution of her now husband would eventually destroy her family.

The Court quashed the FIR. But in doing so, Justice Bhambhani did not dilute the law, instead he exposed its limits.

The Fiction of the 'Victim'

The POCSO Act rests on a bright line rule: a person under 18 cannot consent. Period. It is a rule designed for certainty and not deliberations. However, the changing dynamics of the Indian society have made it a lot harder for Courts to effectively put this into practice and has created a dilemma where some High Courts have vouched for sympathetic quashing of FIRs on case-to-case basis while others have cautioned against the dilution of child protection safeguards.

Not going into the issue of consent however, the Delhi High Court in this case chose to take an interesting detour by striking a distinction between a de-jure victim - one constructed by statute and a de-facto victim, i.e one who has actually suffered harm. Section 2(wa) of the C.rPC and corresponding 2(1)(y) of the BNSS defines 'victim' as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir. Here, the prosecutrix neither alleged harm nor sought redress. Yet the law insisted on treating her as a victim. Thus, the Court proceeds with a recognition that there may be crimes without victims in lived reality, even if the statute says otherwise.

Internationally also victimhood is not a statutory status but a question of harm suffered. The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) defines victims as those who have endured “physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights.” The Rome Statute of the International Criminal Court (via Rule 85(a) of the Rules of Procedure and Evidence) similarly echoes this. The UN Convention on the Rights of the Child (CRC, 1989) centres on the “best interests of the child” (Article 3) and respects evolving capacities (Article 5), not rigid age cut-offs. India's POCSO, by contrast, creates a de-jure victimhood that can override the child's own assessment of harm, precisely the dissonance Justice Bhambhani highlights.

Global Lessons and the Larger Issue of 'Age of Consent' in India

Most jurisdictions have rejected India's absolutist stance. “Romeo and Juliet” or close-in-age exemptions are the norm, not the exception. Canada sets the age of consent at 16 but exempts consensual sex with 14–15-year-olds if the partner is less than five years older (and narrower exemptions for 12–13-year-olds if less than two years older), provided there is no exploitation, authority, or dependency. Most U.S. states have similar proximity rules (typically 2–4 years)^]. The UK's age of consent is 16, but prosecutorial guidelines explicitly discourage charging mutually consensual teen relationships absent exploitation. Australia's states provide defences for close-in-age peers. Even France fixed the age of 15 in 2021 as the age of consent while while holding that sexual relations with a child below 15 would amount to rape.

Crucially, the Supreme Court in India is now actively seized of the broader issue in the PIL Nipun Saxena & Anr. v. Union of India (W.P.(C) No. 565/2012). The matter is re-examining the age of consent. Amicus curiae Senior Advocate Indira Jaising has filed detailed written submissions urging the Court to read down the statutory age of consent from 18 to 16 years, arguing that blanket criminalisation of consensual sexual activity between adolescents aged 16–18 under POCSO and the BNS constitutes an overreach that unfairly penalises normal teenage relationships. The Union of India has opposed any dilution, warning of heightened risks of exploitation, but the Court has signalled openness to structural reform. This aligns with the Supreme Court's observations in related cases like State of U.P. v. Anurudh (2026 INSC 47), where it explicitly flagged the misuse of POCSO in consensual adolescent romances and urged the government to consider a “Romeo-Juliet” clause or close-in-age exceptions.

The Court as a Parent or a Referee?

POSCO cases where consensual sexual relations are involved, thus, force courts into a difficult dual role. On one hand, the court is obligated to follow the mandate of the Act, but it is also supposed to take into account the “best interests of the child” as a parens patriae. The question arises, who decides the “best interests of the child”? The law, the prosecuting agency, the courts or the child herself?

Harmeet Singh sits squarely at this fault line.

To its credit, the judgment attempts to build guardrails. Justice Bhambhani weighs on whether the strict application of the POCSO Act in such cases result in serious re-victimisation of the de-juré victim and thus arrives to the view that prosecuting a person on the shoulders only of a de-juré victim would not be the prudent approach, much less so, when the consequences of such prosecution would befall the de-juré victim herself. Thus, he gives the following guidelines while dealing with these issues-

1. Based on the circumstances of a given case, the court must be satisfied that in granting a “no-objection‟ to the quashing of criminal proceedings, the de-juré victim is genuinely acting on her own free will and volition and has not been misled, pressurised or deceived into offering such no-objection;

2. Whether the de-juré victim has taken a consistent stand in favour of closing the case from the inception of the criminal proceedings, and has disclaimed that she has suffered any loss or injury at the hands of the offender;

3. Whether the circumstances of the case justify an inference that the acts or omissions that the parties have indulged in, were volitional on the part of the de-juré victim;

4. Whether the marriage or other arrangement, based on which the offender and the de-juré victim are seeking closure of criminal proceedings, evokes confidence on the part of the court; or does it appear to be a ruse or stratagem of the offender to evade conviction and punishment;

5. Whether the parties have been living together as a family for a length of time; and whether children are born to the parties, whose future would also be impacted by a decision not to quash the criminal proceedings;

6. Whether the offender is alleged to have committed any violence or brutality on the de-juré victim; or has committed any other act or omission that points to the absence of genuine volition on the part of the de-juré victim; and if so, is there any medical and other forensic evidence to show such conduct on the offender‟s part;

7. What was the respective age of the offender and the de-juré victim at the relevant time; whether both were minor; and what are the ramifications of the relative age difference and minority;

8. Lastly, the court adds the rider that the aforementioned considerations are only suggestive and far from exhaustive; and before quashing any criminal proceedings under the POCSO Act, the court must interact with the parties and arrive at a subjective satisfaction that the quashing of the case is warranted on larger considerations of justice and to prevent abuse of the process of law.

Challenges

These are sensible safeguards and a sincere attempt at dealing with the complexity of the issue but they also fail to take into account some limitations.

1. Guidelines 1, 3 and 6 ask courts to examine whether the relationship was “volitional”, whether there was any “violence or brutality”, on the child. This is complicated as absence of physical brutality may not by itself be evidence of genuine affection within the relationship. Grooming is rarely visible. It involves gradual boundary erosion, isolation from family, love-bombing, and economic/emotional dependency. A 17-year-11-month-old may sincerely believe she is in love, yet that belief may itself be the product of sophisticated manipulation.

2. Are courts across India, operating within strict evidentiary and procedural frameworks, truly equipped to make these above-mentioned distinctions? And where should these distinctions be made? At the family level when the incident gets known, the police level or the Child-welfare committee level when it is reported or at the level of the judiciary where it reaches for adjudication?

3. Also, requiring “forensic evidence” of absence of volition is unrealistic. Most POCSO cases triggered by hospital deliveries (as in Harmeet Singh) have no medical record of force. Digital evidence such as WhatsApp chats, Instagram DMs, etc. is often unavailable or requires forensic analysis that trial courts rarely order at the quashing stage.

4. Guideline 2 rewards consistency of the girl's statement “from the inception” of proceedings. However, in many cases girls initially support their partner but later retract under family or societal pressure; Thus, penalising inconsistency effectively punishes victims who might be themselves confused and vulnerable.

5. Guideline 5 rightly considers the existence of children and length of cohabitation which is a pragmatic recognition of the fact that prosecution may destroy a young family. However, the guideline does not address the uncomfortable reality that many underage marriages are solemnised precisely to legitimise pregnancies and forestall prosecution. It may inadvertently incentivise the very child marriages POCSO and the Prohibition of Child Marriage Act seek to prevent

6. Guideline 7 asks courts to consider “the respective age of the offender and the de- jure victim” and “the ramifications of the relative age difference”. In short, reading the 'Romeo-Juliet' clause into the law. Yet it provides no thresholds of age. How is a 4-year gap presumptively acceptable and a 12-year gap presumptively exploitative? Is it not also reinforcing societal standards of acceptable relationships?

7. There is no mandatory role for Child Welfare Committees, the Investigating Agencies, Independent legal aid for the girl, or psychological evaluation by a qualified expert in these guidelines. The entire exercise remains judge-centric, leaving it open to paternalistic approaches in decision making.

8. Lastly, these guidelines and the judgment in general remains silent about cases where both parties are minors (e.g., a 17-year-old boy and a 16-year-old girl). POCSO is gender neutral and the guidelines offer no framework for resolving such cases, where notions of “volition”, “offender”, and “victim” blur completely.

The Harmeet Singh judgment is a courageous step toward experience-based adjudication of consensual adolescent relationships within the ambit of POCSO. It prevents the law from re-victimising the very child it seeks to shield. But guidelines alone cannot reconcile statutory rigidity and human reality. We need legislative reform as well as judicial clarity: a close-in-age exception for relationships with a 3–4 year gap, coupled with mandatory safeguards such as psychological assessments, independent verification of voluntariness, and specialised training of police officials, CWC members and judicial officers. Protection without nuance can become overreach and consent without scrutiny can mask exploitation. Law without attention to such complexities can produce injustice. Harmeet Singh forces these tensions into the open.