A petition was filed before the Jammu & Kashmir and Ladakh High Court by a minor victim of rape to question the legal process and to invoke the inherent jurisdiction of this Court under Section 528 of BNSS to quash the chargesheet filed against her alleged tormentor in pursuance of an FIR under Section 64 of the Bharatiya Nyaya Sanhita, 2023, and Section 3 read with Section 4 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), pending trial before the POCSO Court, Srinagar.
On 05-10-2025, SHO Police Station Shalteng received a zero FIR for necessary action as the said FIR was registered based on a telephonic information from a Doctor at the Sub District Hospital, Pattan, that a minor girl had delivered a female baby and that she was accompanied by her mother and the alleged perpetrator. After investigation, the alleged perpetrator was apprehended and arrested. By a FSL report, it was confirmed that the accused was the biological father of the newborn and that the victim’s age at the time of delivery was 16 years, 3 months, and 11 days. Thereafter, a chargesheet was filed.
The minor victim had been agitating that she was the legally wedded wife of the accused and that the couple’s customary Nikah was performed on 21-09-2024 as per Muslim Personal law, but the ‘rukhsati’ ceremony had not happened. It was submitted that both the parties fell in love and went on to develop physical intimacy, which was purely consensual resulting into pregnancy. She also asserted that there was a difference of few years in her actual age and the age recorded in the school admission records, which led to the confusion.
The Court flagged that the initial report with the police was not lodged by the victim or her parents/relatives and that the accused was accompanying the victim when she was taken to the maternity hospital for delivery. It was noted that the present matter was a case of the victim and accused having fallen in love and eventually solemnizing Nikah even though she happened to be a minor at the time. Further, the Court noted that the couple started living together as husband and wife, which resulted into the victim’s pregnancy and that nobody had any grievance for this.
It was stated that even though the POCSO Act, 2012, intended to target sexual exploitation of children, however, it has created a grey area as it has definitely resulted in criminalizing consensual adolescence/teenage relationships after the age of consent had been raised from 16 to 18. The Court said that even if a girl below 18 consented to a sexual intercourse, her consent has to be ignored and the other party would be guilty of committing an offence under the POCSO Act.
The Court stated that the Supreme Court has time and again emphasized that criminal courts must not ignore the social realities and that judicial processes must support the survival and protection of families rather than mechanical punitive actions since the future of a family is at stake especially when the parties wish to live peacefully. However, noting that the victim fell into the definition of ‘child’, the Court stated that the accused could not escape from the consequences of his errant behaviour when he was fully aware of the petitioner’s age.
It was noted that even if all factors are considered, still the offence for which the accused had been charge sheeted would not be wiped out. The Court said that they could at best be mitigating factors, entitling the accused to bail, but could not be the reason to quash the charge sheet. Thus, the petition was dismissed.
