Marriage Between Victim And POCSO Accused Does Not Mitigate Commission Of Offence: Delhi HC

The Delhi High Court, while dismissing an application for bail under Section 439 of Cr.P.C., observed that, "Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law." 

An FIR under Sections 363/366/376 Indian Penal Code (IPC) and Sections 4/6 of Prevention of Children from Sexual Offences Act 2012 (POCSO) was registered.

The facts of the matter were that the petitioner had lured and kidnapped a minor girl of about 15 years of age in the year 2019. A habeas corpus petition was filed by the mother of the victim in 2019 itself and the accused had misled the investigation. Through technical surveillance, the victim was traced and it was found that she had been living with the accused since then. It came to light that a marriage was also solemnized between the victim and the petitioner and the victim was one and a half months pregnant at the time of being found.

The counsel for the petitioner contended that the relationship between the minor and the petitioner was voluntary and that the victim was suffering due to the incarceration of the petitioner. He placed reliance wherein bail had been granted in similar cases.

The Additional Public Prosecutor for the State, opposed the bail application and submitted that the victim was merely 14 years and 6 months of age at the time when she was lured and kidnapped by the petitioner. It was also urged by state's counsel that the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and led the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.  

Justice Anoop Kumar Mendiratta cited the Supreme Court judgment in Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat, Crl. Appeal No.230 of 2013, which held that, "First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential." It was further observed in Satish Kumar Jayanti Lal Dabgar (supra) that, "we have to treat it a case where the appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act."

Justice Mendiratta observed in the present case that, "Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident."

The petition was hence, dismissed.