The Delhi High Court has held that a victim's wish to continue living with an accused and her family's acceptance of their relationship cannot override the statutory protections under the Protection of Children from Sexual Offences (POCSO) Act.

Justice Sanjeev Narula observed that the victim's wishes and the question of criminal liability for acts allegedly committed during her minority are distinct in the eyes of law.

“The victim's wishes and the question of criminal liability for acts allegedly committed during her minority are distinct in the eyes of law,” the Court observed.

Justice Narula was hearing a plea filed by a man seeking quashing of an FIR registered in 2023 under Sections 363 and 376 of the Indian Penal Code and Section 6 of the POCSO Act.

The plea was based on a settlement between the parties and their subsequent matrimonial relationship.

The complainant's daughter had gone missing in February 2023, when she was stated to be around 15 years old. She was traced in December 2023, following which her medical examination confirmed that she was pregnant.

In her statement recorded under Section 164 of CrPC, the girl stated that she had voluntarily accompanied the petitioner and established physical relations with him of her own will.

The couple subsequently got married and had a child in June 2024. The petitioner did not dispute being the child's father.

Before the High Court, the petitioner submitted that he and the victim were happily living together as a family. The victim and her mother were also present before the Court and supported the plea for quashing the criminal proceedings. Both had filed affidavits expressing no objection to the termination of the case.

Opposing the petition, the State submitted that the school records collected during the investigation showed that the victim was born on March 15, 2008, making her approximately 14 years and 10 months old when she left home in February 2023.

The State argued that the allegations disclosed serious offences under the IPC and the POCSO Act and that the subsequent marriage and settlement could not furnish a lawful basis for terminating the prosecution.

The Court noted that the medical evidence confirmed the victim's pregnancy in December 2023, when she was approximately 15 years and 9 months old. It also noted that the child was subsequently born in June 2024, which, in the ordinary course of gestation, would place conception around September 2023.

It further observed that the material on record prima facie established a physical relationship between the petitioner and the victim, while the petitioner also acknowledged being the child's father.

“These circumstances provide a substantial prima facie foundation for the allegation of penetrative sexual assault and the aggravated circumstance contemplated under Section 5(j)(ii), punishable under Section 6 of the POCSO Act,” the Court observed.

It also dealt with the discrepancy concerning the victim's age, noting that while she had described herself as 18 years old in her statement, the identity document relied upon by the petitioner reflected a different year of birth from the one recorded in the school documents.

It held that the discrepancy could not be conclusively resolved in proceedings seeking quashing of the FIR and that the evidentiary value of the competing records would have to be examined by the trial court.

The Court reiterated that under the POCSO Act, a child is defined as a person below 18 years of age and that penetrative sexual assault upon a child resulting in pregnancy constitutes an aggravated offence.

Referring to the Supreme Court's judgments in Independent Thought v. Union of India and Society for Enlightenment and Voluntary Action v. Union of India, the Court observed that marriage does not take away the protection afforded to a child under criminal law.

It also referred to the Supreme Court's decision in Ramji Lal Bairwa v. State of Rajasthan, which disapproved of quashing POCSO proceedings merely on the basis of a compromise between the parties.

The Court further distinguished the Supreme Court's decisions in K. Kirubakaran v. State of Tamil Nadu and In Re: Right to Privacy of Adolescents, observing that the relief granted in those cases was in exercise of the Supreme Court's extraordinary powers under Article 142 of the Constitution of India.

It clarified that such decisions do not lay down a general proposition that marriage or settlement, by itself, constitutes a ground to quash proceedings under the POCSO Act.

The Court acknowledged that the victim wished to continue living with the petitioner and that her mother supported her decision. It also took note of the subsisting family relationship and the welfare of the child.

However, it held that the said humanitarian considerations could not independently justify quashing a prosecution involving serious allegations under the POCSO Act.

The Court left it open to the petitioner to approach the Supreme Court and seek appropriate relief under Article 142 of the Constitution of India, while clarifying that it was expressing no opinion on whether such relief would be warranted.

Dismissing the petition, the Court clarified that the observations made in its order were confined to the consideration of the quashing plea.

It directed that the Special Court would independently determine the victim's age, the ingredients of the alleged offences and all other questions arising in the proceedings on the basis of evidence, without being influenced by the observations made in the order.