"Minor Girl Living With Accused As His Wife": Meghalaya High Court Quashes POCSO Case Adopting A 'Pragmatic' Approach

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 (a minor) were living with each other as husband and wife.

The Bench of Justice W. Diengdoh stressed that though POCSO Act punishes the act of sexual penetration inflicted upon a minor, yet, if other attending factors such as a case of consensual sex within the bond of marriage will not be taken into consideration then the cause of justice wouldn't be served.

"The POCSO Act speaks of penetrative sexual assault and aggravated penetrative sexual assault to indicate that an act of sexual penetration inflicted upon a minor will attract the punishment for the same under the relevant provisions of the said Act. However, in a case where other attending factors such as a case of consensual sex or sex within the bond of marriage albeit between persons who are still minors or one of whom is a minor, are not taken into account in the correct perspective, the course or cause of justice may not have been served, but only the letter of the law fulfilled," the bench remarked.

The case in brief 

In the instant case, petitioner No. 1 (husband) was living with petitioner No. 2/daughter of the Informant/respondent No. 2 (a minor girl) in December 2020 as husband and wife. This relationship was also approved by the family members of both the family.

When petitioner No. 2 (minor girl/wife) became pregnant, the accused (petitioner no. 1) visited the local CHC and on being confirmed that she is pregnant, the hospital authority informed the police about the matter.

This led the police to visit the house of the minor girl and on being persuaded, she filed the said FIR against her will against her husband under Section 5 (j) (ii) (q)/6 of the POCSO Act, 2012. Now, both of them approached the Court seeking to quash the FIR so lodged.

They submitted before the Court that being ignorant of the law, they both cohabited together as husband and wife and now, they are happily living a complete family life with the petitioner No. 1 being the bread earner of the family and if the case against him proceeds further, great hardship will be faced by the family

Court's observations 

At the outset, the Court took into account the fact that the girl had practically refused to accept the fact that the act of her husband does constitute an offence under the relevant provisions of the POCSO Act, 2012.

Further, stressing that notwithstanding the rigors of the law under the provisions of the POCSO Act, certain practical aspects of a case have to be considered, the Court, remarked thus:

"This is precisely the case here where a minor girl who is living with a man as husband and wife with the blessings of the family members, has to witness her husband being prosecuted under the POCSO Act only because of her age being under 18 years. In fact, in the present case, the age of the minor girl is said to be about 17 years and 7 months which is only about 5 months less than 18 years at the time of reportage of the alleged offence."

Consequently, looking to the case with a pragmatic approach, the Court was convinced that the ends of justice shall meet if the court exercises its power under Section 482 Cr.P.C. to quash the instant case, and accordingly, the Court allowed the 482 CrPC plea.

Case title - Olius Mawiong & Anr. Vs. State of Meghalaya & Anr. [Crl.Petn. No. 22 of 2022]

Citation: 2022 LiveLaw (Meg) 25

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