“Injustice To Divide A Well-Knitted Family”: Meghalaya HC Quashes POCSO Charges Against Man Accused Of Having ‘Consensual Sex’ With Minor Wife
Case: Shri. Kwantar Khongsit & Ors. v. State of Meghalaya & Ors.
Coram: Justice W. Diengdoh
Case No.: Criminal Petition No. 34 of 2022
Court Observation: “…in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock the conscience of this Court if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship.”
“Though, the POCSO Act has been rightly enacted to safeguard children from sexual exploitation, but in the peculiar facts and circumstances of the case of the petitioners herein, the rigors of the said Act may not be applied to their case and the converse would only result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support, physically or financially from her husband who may be languishing in jail.”
“Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ‘penetrates’, in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male.”
“Notwithstanding the fact that the case in question is at the evidence stage, this Court can exercise its inherent power to ensure ends of justice is met and, in this case, it would be an injustice to separate or to divide a well knitted family unit.”
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Keywords
Consensual Sex, POCSO Charges, Consensual Sex With Minor Wife
