JUDGMENT

Manmohan, J. (Oral)

1. Present writ petition has been filed with the following prayers:"

a) issue an appropriate writ, order or direction in the nature of certiorari or such other similar writ, in the nature of declaration, declaring Section 198(6) to the extent inconsistent with the provisions of Protection of Children from Sexual Offences Act, 2012 as unconstitutional & ultra-vires and liable to be struck down; and

b) issue an appropriate writ, order or direction in the nature of certiorari or a writ of declaration that the provisions of Section 19 read with Section 21 of the Protection of Children from Sexual Offences Act, 2012 requiring mandatory reporting of offence being committed under the Act overrides the restrictions being imposed under Section 198(1) read with 198(3); and

c) issue an appropriate writ, order or direction in the nature of certiorari or a writ of declaration broadening the definition of `person' under 198(3) who intends to complaint on behalf of a person under the age of eighteen years, specifically to include Childline (1098), Child Welfare Committee and other agencies as provided under the Juvenile Justice (Care and Protection of Children) Act, 2015, so to empower them with responsibility.

d) issue an appropriate writ, order or direction in the nature of certiorari or a writ of declaration for harmonious and purposive amendment of provisions of 198(6) Code of Criminal, 1973 allowing minor victims of marital rape to have benefits of file compliant till the age of 20 years in consonance with the provisions of Section 3(3) of the Prohibition of Child Marriage Act, 2006.

e) Pass such other order or orders and directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case as also in the interest of justice;"

ARGUMENTS ON BEHALF OF THE PETITIONER

2. At the outset, learned counsel for the petitioner states that the petitioner would be satisfied if a declaration is granted to the effect that Section 19 read with Section 21 of the Protection of Children from Sexual Offences Act, 2012 (`POCSO Act') override the restrictions imposed under Section 198(1) read with Section 198(3) of the Code of Criminal Procedure, 1973 (`Cr.P.C') and if the limitation to file the complaint by a minor victim is extended till she completes two years of attaining majority.

3. Learned counsel for the petitioner submits that Section 198(6) Cr.P.C is an impediment to the protection of rights of minor girl children who are victims of marital rape as it restricts the right of such minor victims to legal remedy. He submits that while substantive law provides for no categorisation or differentiation of any sort, the procedural law continues to discriminate against a minor girl victim of marital rape. The relevant portion of Section 198 of Cr.P.C. relied upon by learned counsel for the petitioner is reproduced hereinbelow:

"198. Prosecution for offences against marriage. (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that

(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

xxx xxx xxx

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such gu