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Meghalaya High Court Quashes POCSO Case Noting That Minor 'Victim' Gave Birth To Child While Living With Accused As His Wife

Sparsh Upadhyay
26 March 2022 10:25 AM GMT
Meghalaya High Court Quashes POCSO Case Noting That Minor Victim Gave Birth To Child While Living With Accused As His Wife
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"In the context of consensual or voluntary sexual intercourse, and more so if the girl is underage while the boy would be above the age of 18 and also if it is confirmed that they are living as husband and wife and the wife perhaps having given birth to a child, the issue becomes more complex" : Meghalaya High Court

The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born.The Bench of Justice W. Diengdoh however stressed that such cases of consensual or voluntary sexual intercourse with an underage girl by an...

The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born.

The Bench of Justice W. Diengdoh however stressed that such cases of consensual or voluntary sexual intercourse with an underage girl by an adult man while they are living as husband and where the wife gives birth to a child, are complex.

The case in brief

Essentially, petitioner No. 1 (Husband/Accused) and petitioner No. 2 (Wife/victim) are husband and wife and in course of their relationship, petitioner No. 2 got pregnant, and accordingly, when the petitioner No. 1 took her to a hospital for medical checkup, the hospital authorities on confirming that petitioner No. 2 is pregnant and that her age was about 17 years, they informed the police of the matter.

The police suo moto booked petitioner No. 1 (Husband/Accused) u/s 5(j)(ii)/6 POCSO Act and thus, he moved to the HC with a Section 482 CrPC seeking to quash the FIR against him and subsequent criminal proceedings.

Before the Court, his counsel submitted that petitioner No. 1 and petitioner No. 2 are husband and wife and a statement to this effect was made by the minor wife u/s 161 CrPC as well as u/s 164 CrPC

The Court was also told that the mother of the minor girl, in her statement also recorded u/s 161 as well as u/s 164 CrPC had confirmed the said fact and had also said that out of the cohabitation between the couple, a male child was born to them. Neither petitioner No. 2 nor the family members wished to proceed with the case against petitioner No. 1.

Lastly, it was told to the Court that the petitioners hail from a rural background and who are oblivious to the provisions of law, particularly the POCSO Act and they had willingly cohabited together as husband and wife as per the customary law of the land and it was, but natural, that a child would be conceived out of such union

Court's observations 

At the outset, the Court noted that the minor-wife at the relevant period was below the age of 18 years and therefore, she would fall with the definition of a 'child' as per Section 2(1)(d) of the POCSO Act.

Further, the Court noted that being a child and not capable of giving consent, the act of sexual contact made by the Husband-Accused was contemplated to be punished as aggravated penetrative sexual assault, however, the Court further opined that the act committed under the circumstances of the instant case cannot be called or termed in any logical or rational sense as a case of assault as there was no threat or attempt to inflict offensive physical contact or bodily harm on the petitioner No. 2 has been made out.

In view of this, the Court decided to quash the FIR in the case and the consequent criminal proceedings by invoking its extra-ordinary power under section 482 Cr.P.C. with a view to secure the ends of justice.

Case title - Shri. Skhemborlang Suting & Anr. v. State of Meghalaya & Anr.

Citation: 2022 LiveLaw (Meg) 11

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