Consent of a minor is legally irrelevant to charges of sexual assault, even in context of a marriage that is voidable.

Order

RESERVED ON : 08/07/2025 PRONOUNCED ON : 15/07/2025

1. This application for bail under Section 4 83 of BNSS (439 Cr.P.C.) has been filed by the petitioner who has been arrested in connection with F.I.R. No. 870/2024, registered at Police Station Hanumangarh Junction, District Hanumangarh for the offences under Sections 137(2), 87, 64(1), 65(1) & 3(5) of BNS, Section 3 /4(2) of POCSO Act and Section 9 /10 of Prohibition of Child Marriage Act.

2. Learned counsel for the petitioner submits that the allegations levelled against the present petitioner are to the effect that he lured and kidnapped the complainant’s minor daughter Mst. ‘R’ and sexually assaulted her on several occasions. It is further submitted that the petitioner and the prosecutrix knew each other for a long time, and the prosecutrix in her statement recorded before the Magistrate clearly stated that she left her home and solemnised marriage with the petitioner thereafter he established physical relations with her. It is stated that there is no reference to forceful sexual assault and kidnapping by the petitioner in her statement. It is further submitted that from a bare perusal of the statements given by the prosecutrix to the police, it is clear that she had an affair with the petitioner, left her house voluntarily, accompanied him out of her free will to various places and ultimately married him.

3. Learned counsel for the petitioner also submits that Sections 9 /10 of the Child Marriage Prohibition Act have also been charged against the present petitioner, however, the marriage is voidable as per the said act as well as Section 5 of the Hindu Marriage Act. It is further submitted that the essential ingredients to constitute an offence under Sections 3 and 4 of the POCSO Act are absent in the present case, as the prosecutrix has stated that she married the accused-petitioner and did not allege any non-consensual sexual act.

4. Learned counsel for the petitioner further submits that the accused-petitioner has been falsely implicated in the present case. It is submitted that the accused-petitioner is in custody since 10.12.2024 and the trial of the case will take sufficiently long time; therefore, the accused-petitioner may be enlarged on bail.

5. Conversely, the learned Public Prosecutor has strongly opposed the bail application, while arguing that the accused- petitioner not only committed sexual assault upon a minor girl but also removed her from her parents' lawful guardianship, causing her mental and physical agony. He contended that this act constitutes a heinous crime, therefore, considering the seriousness of the offences, bail may not be granted to the accused-petitioner.

6. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the material available on record.

7. It is an undisputed fact that the prosecutrix’s date of birth is 10.02.2009 and she was a minor (15 years 9 months) at the time of the alleged incident that took place on 02.12.2024. Therefore, her consent is irrelevant, as she cannot be considered a consenting party. Even if she left home, married, and engaged in physical relations with the accused-petitioner, her consent as a minor holds no legal significance.

8. Moreover, the contentions raised upon validity of marriage with the prosecutrix that it is voidable and not void under Hindu Marriage Act, thus, comes under Exception 2 of Section 375 of IPC (now Exception 2 of Section 63 of BNS); however, from the bare perusal of Exception 2 of Section 63 of BNS it is crystal