Consensual Nature Of Relationship Irrelevant For Prosecution Under POCSO Act: Delhi High Court

The Delhi High Court has observed that prima facie, the consensual nature of relationship between the accused and prosecutrix is irrelevant for prosecution under the POCSO Act.

Rejecting the accused's plea that the relationship between him and the prosecutrix was consensual in nature, Justice Sanjeev Narula said:

“This plea of consensual relationship is legally immaterial. Under the POCSO Act, the age of the victim is the decisive factor, and if the victim is below 18 years of age, the law presumes that she is incapable of giving valid consent. The alleged consensual nature of the relationship is, therefore, prima facie irrelevant for the purpose of prosecution under the POCSO Act.”

The Court denied bail to one Mohd. Rafayat Ali in a POCSO case registered last year after a complaint was signed by prosecutrix's mother.

The prosecutrix, aged 16 years, recorded her statement alleging that Ali, who was already married and had children, developed acquaintance with her and engaged in physical relations with her on multiple occasions under the pretext of marriage.

She stated that upon knowing that she was pregnant, Ali provided her with some medication which resumed her menstrual cycle but caused her severe abdominal pain. Her parents got to know about the pregnancy after an ultrasound test was conducted in a hospital.

During her interaction with the Child Welfare Committee, the Prosecutrix reiterated that her relationship with the accused was consensual.

It was submitted by the accused that there was discrepancy in the age of the Prosecutrix at the time of the incident, that she was 18 years old and that their relationship was consensual.

Rejecting the bail plea, the Court noted that at the stage of bail, it cannot disregard the school records which categorically mentioned the date of birth of the Prosecutrix as August 03, 2008.

The Court said that in the absence of any conclusive proof to contradict the school records, the mere oral assertion of the Prosecutrix during trial cannot be given overriding weight at the stage of bail.

“Given this assertion, the Applicant's claim that the Prosecutrix was a major at the time of the alleged incident remains unsubstantiated and is a matter that can only be tested during trial,” the Court said.

It added that prima facie, on the basis of the cross- examination of the Prosecutrix before the Trial Court, nothing emerged to discredit the school record relied upon by the prosecution to verify the date of birth of the victim.

“The nature of the offence, the age disparity between the parties, and the fact that the trial is still ongoing with key public witnesses yet to be examined are factors that cannot be overlooked. Thus, considering the gravity of the offence, the potential for influencing the witness, and the stage of the trial proceedings, the Court is not inclined to grant bail to the Applicant,” the Court said.

Title: MOHD. RAFAYAT ALI v. STATE NCT OF DELHI AND ANR.

Citation: 2025 LiveLaw (Del) 158

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