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"Injustice To Divide A Well-Knitted Family": Meghalaya HC Quashes POCSO Charges Against Man Accused Of Having 'Consensual Sex' With Minor Wife

Jyoti Prakash Dutta
11 Aug 2022 6:00 AM GMT
Meghalaya High Court, Union Ministry of External Affairs, Inform Kins, Foreigners, Died, Custody, Compensation Purposes, Directs, UOI, Chief Justice Sanjib Banerjee and Justice Hamarsan Singh Thangkhiew,

The Meghalaya High Court, on Wednesday, quashed and set aside charges levelled against a man under the provisions of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') for allegedly having 'consensual sex' with his minor wife.

A Single Judge Bench of Justice W. Diengdoh took note of the peculiar circumstances of the case and observed,

"…in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock the conscience of this Court if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship."

Factual Background:

The petitioner No. 1 and the petitioner No. 2 herein are husband and wife. The two were in a love relationship since the year 2018 and in the year 2019 started living together as husband and wife with the knowledge and consent of the family members of petitioner No. 2. The petitioner No. 2 at the relevant point of time was about 16 years old.

Sometime in the month of October 2019, the petitioner No. 2 started complaining of weakness with bouts of vomiting following which she was taken to Hospital. After conducting the required medical examinations, on 22.10.2019, it was confirmed that she was pregnant for 16 weeks 4 days. The Medical Officer of the said hospital informed the petitioner No. 1, the petitioner No. 3 and the uncle of the petitioner No. 2 that they are required to report the matter to the police station as the petitioner No. 2 was still a minor.

After going to the Police Station, the petitioner No. 3 (the mother of the petitioner No. 2) was advised to lodge an FIR, which she duly did on 29.11.2019. Subsequently, a case under Section 5(j)(ii) of the POCSO Act was registered.

The investigation was carried out and on 06.06.2020, the petitioner No. 1 was arrested by the police and was incarcerated in custody for a period of 90 days. Thereafter, the investigating officer filed the chargesheet inter alia, finding that there is a prima facie case made out against the accused/petitioner No. 1 under the aforesaid Sections. The case is now pending at the stage of evidence before the Court of the Special Judge (POCSO), Shillong. The petitioners have approached the High Court praying to quash the pending case.

Contentions of the Petitioners:

Ms. A. Syiem, counsel for the petitioners, led the Court to the statement of the petitioner No. 2 made under Section 161 CrPC, where she had confirmed that she was in a relationship with the petitioner No. 1 since 2018 and has had physical relationship with him on several occasions and that too, with her consent, coupled with the fact that they are now staying together as husband and wife.

It was submitted that the petitioner Nos. 1 and 2 are now living a happy married life and as such, continuation of the proceedings before the Special Court (POCSO) would only cause great hardship and inconvenience to the parties involved including the family members.

She relied upon the judgment of the High Court in Skhemborlang Suting & Anr. v. State of Meghalaya & Anr., to show that under similar facts and circumstances the Court had quashed an FIR and chargesheet under Section 5(j)(ii)/6, POCSO Act. It was, thus, prayed that this petition may be allowed and the related proceedings before the Special Court (POCSO) be set aside and quashed.

Contentions of the Respondents:

Mr. H. Kharmih, Additional Public Prosecutor appearing for the State, submitted that though there is no strong opposition to the prayer of the petitioners herein, however considering the fact that the case is at the evidence stage and that the Court in a related matter had denied to entertain a similar prayer on the ground that the recording of the evidence had already started, therefore the petitioners herein may also be directed to face the trial and to await the conclusion thereof.

Court's Observations:

The Court noted that the petitioner No. 2 had reiterated whatever she had stated before the police under Section 161 in her statement under Section 164 Cr.P.C. and even in her evidence as a witness before the Special Court. She has not changed her stand but has maintained that the petitioner No. 1 is now her husband and they are living together in a happy married life with a child born to them. It was also put on record that in the meantime the petitioner Nos. 1 and 2 have solemnized their marriage on 30.05.2022, upon the petitioner No. 2 attaining majority.

The Court observed that one of the cardinal principles which emerged from an understanding and reading of the provision of Section 482 Cr.P.C. is that the inherent power of the High Court can be invoked irrespective of the provisions under the Code of Criminal Procedure only to the extent that necessary orders may be passed to give effect to any order under the said code or to prevent the abuse of any code or to secure the ends of justice.

Justice Diengdoh placed reliance on the following observations made in Skhemborlang Suting (supra),

"Though, the POCSO Act has been rightly enacted to safeguard children from sexual exploitation, but in the peculiar facts and circumstances of the case of the petitioners herein, the rigors of the said Act may not be applied to their case and the converse would only result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support, physically or financially from her husband who may be languishing in jail."

Further, the Bench relied on the following remarks made by the Calcutta High Court in Ranjit Rajbanshi v. State of West Bengal & Ors.:

"Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male."

Having regard for the peculiar facts of the case and the aforesaid reliable precedents, the Court concluded,

"Notwithstanding the fact that the case in question is at the evidence stage, this Court can exercise its inherent power to ensure ends of justice is met and, in this case, it would be an injustice to separate or to divide a well knitted family unit."

Accordingly, the case pending against the Petitioner No. 1 in the Special Court (POCSO), Shillong was quashed and set aside.

Case Title: Shri. Kwantar Khongsit & Ors. v. State of Meghalaya & Ors.

Case No.: Criminal Petition No. 34 of 2022

Judgment Dated: 10th August 2022

Coram: W. Diengdoh, J.

Counsel for the Petitioners: Ms. A. Syiem, Advocate

Counsel for the Respondents: Mr. H. Kharmih, Additional Public Prosecutor

Citation: 2022 LiveLaw (Meg) 28

Click Here To Read/Download Judgment

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