Consensual Adolescent Relationship Or Marriage Cannot Wipe Out POCSO & S.64 BNS Offences; At Best Mitigating Factors For Bail, Not Ground To Quash Charges: J&K&L High Court

"Even if all these factors are taken together still the offence for which accused has been charge sheet does not get wipe out. All these factors can at the best be described as the mitigating factors entitling the accused to bail, but cannot be reason to quash the charge sheet." Holding that consensual adolescent intimacy and subsequent customary marriage cannot obliterate statutory offences involving a minor, the High Court of Jammu & Kashmir and Ladakh, on October 28, 2026, ruled that romantic relations, pregnancy, or parental acquiescence can at best serve as mitigating factors for bail, but cannot justify quashing a chargesheet under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The prosecution originated after hospital authorities alerted the police that a girl aged 16 years, 3 months had delivered a child, leading to an FIR under Section 64 of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Following the filing of the chargesheet, the minor victim herself petitioned the High Court to quash the criminal proceedings, contending that she had entered into a consensual relationship and solemnized a customary Nikah with the accused under Muslim Personal Law, and that his ongoing incarceration destroyed their family life.

Whether sexual intimacy resulting from a consensual romantic relationship and customary Nikah with a minor female can legally wipe out offences under Section 64 BNS and Sections 3 and 4 of the POCSO Act?

Whether inherent powers under Section 528 BNSS can be exercised to quash criminal proceedings in non-compoundable statutory sexual offences against a minor solely on the ground of the minor's consent and mutual affection?

Whether an unrepresented minor possesses the legal competence to invoke the extraordinary inherent jurisdiction of the High Court independently without a natural or appointed guardian?

Statutory presumption renders minor's consent immaterial under POCSO Act

Justice Yash Paul Bourney observed that ever since the POCSO Act raised the age of consent to 18 years, consensual adolescent relationships have entered a legally complex terrain where statutory mandates strictly criminalize sexual activity with minors. The Court pointed out that once an individual falls within the statutory definition of a child, the question of consent becomes wholly irrelevant in the eyes of criminal law.

The Court observed:

"One of the much-avowed objects of the enactment has been to protect the children from sexual abuse and exploitation. This provision, though definitely intended to target sexual exploitation of children, however, has created a grey area as it has definitely resulted in criminalizing consensual adolescence/teenage relationship and after the POCSO Act raised the age of consent from 16 to 18. An act of sexual indulgence with a girl below 18 years, would attract the rigors of the POCSO Act as well as the offence under Section 376 of IPC even in case of a consensual sexual activity since law presumes that a girl below 18 years is incapable of consenting to sexual intercourse."

Consensual relationship cannot wipe out statutory offence or justify quashing of charge-sheet

Analyzing the facts of the case, the Bench noted that despite the victim's insistence that the physical relationship was born out of love and followed by a Nikah, the accused could not escape the consequences of law given the prosecutrix's established minority at the time of the physical intimacy. The Court reiterated that inherent jurisdiction to quash proceedings cannot be used to bypass the legislative framework governing child sexual exploitation.

The Court held:

"The prosecutrix in the present case was hardly sixteen years of age when she got involved into physical relationship with the accused both of them having been in romantic relationship, still she being falling within the definition of a ‘child’ under POCSO Act, the sexual intercourse with her would attract the offence under the POCSO Act since she has not attained the age of consent. Therefore, accused can’t escape from the consequences of his errant behaviour when he was fully aware of the age of petitioner."

Marriage and lack of grievance constitute mitigating factors for bail, not quashing

While addressing judicial precedents emphasizing the survival of families and calls for a Romeo-Juliet exception in adolescent love affairs, the Court drew a firm demarcation between mitigating circumstances relevant for the grant of bail and grounds permissible for terminating a criminal prosecution at the threshold.

The Court explicitly observed:

"She has claimed that her parents were well aware and they neither objected to their relationship and nor complained to anybody about their relationship. Even if all these factors are taken together still the offence for which accused has been charge sheet does not get wipe out. All these factors can at the best be described as the mitigating factors entitling the accused to bail, but cannot be reason to quash the charge sheet."

Minor incompetent to invoke extraordinary inherent jurisdiction independently

On the maintainability of the petition, the Court held that the minor victim lacked the legal competence to initiate such proceedings in her independent capacity. The Bench noted that the victim, being an unrepresented minor, could not validly maintain a petition under Section 528 of the BNSS without acting through a next friend or legal guardian.

Finding no legal justification to stifle the trial at this stage, the High Court held that the statutory bar under the POCSO Act remains operative regardless of mutual affection between the parties. Consequently, the Court dismissed the petition filed by the minor victim seeking the quashing of the chargesheet.

Date of Decision: October 28, 2026