J&K HC Rejects Minor Mother’s Bid To Quash POCSO Case Against Husband, Says Nikah And Consent Do Not End Prosecution

In brief

The question

Whether the petitioner could invoke the High Court’s inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in the circumstances of this case.

The court held

The Court answered the quashing issue in the negative and found no merit in the petition.

It also directed

It dismissed the petition seeking to quash the charge-sheet.

01Facts

The petitioner, a minor who had delivered a child, sought to quash the charge-sheet against the accused, who was identified by DNA testing as the child’s biological father.

pp. 1–4, 7

The charge-sheet arose from FIR No. 72/2025, registered 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).

pp. 1–4, 7

The petitioner asserted that she and the accused were in a consensual relationship, had entered into Nikah, and wished to live together.

pp. 1–4, 7

The State opposed the petition, contending that her consent was immaterial because she was under 18 and that disputed facts should be determined at trial.

pp. 1–4, 7

Charges had been framed, but the petitioner had not yet testified.

pp. 1–4, 7

02Issues

i.Whether the petitioner could invoke the High Court’s inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in the circumstances of this case.

p. 4, 11

ii.Whether the charge-sheet could be quashed on the basis of the petitioner’s claim that the relationship was consensual and that she and the accused had entered into Nikah.

pp. 3–7, 10–11

03Law Applied

Section 528 BNSS preserves the High Court’s inherent power to prevent abuse of process and secure the ends of justice; under Ram Gopal v. State of Madhya Pradesh, (2022) 14 SCC 531, that power may, for justifiable reasons and having regard to the nature and effects of the offence, extend to quashing even non-compoundable proceedings.

p. 10

Under the POCSO Act, a person under 18 is a child, and their consent does not remove sexual activity from the Act’s prohibition; the Court also noted the contextual factors discussed in State of U.P. v. Anurudh, 2026 INSC 47, concerning adolescent relationships, while treating them as insufficient here to extinguish the alleged offence.

pp. 6–8, 11

Provisions in the judgment · 9 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528

Bharatiya Nyaya Sanhita, 2023 Section 64

Protection of Children from Sexual Offences Act, 2012 Section 3 Section 4

Code of Criminal Procedure, 1973 Section 164 Section 482 Section 320

Indian Penal Code, 1860 Section 376

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37

04Reasoning

The Court accepted that the record indicated a relationship, Nikah, and the petitioner’s wish to live with the accused.

pp. 9–11

It nevertheless held that, because she was below 18 when the sexual relationship occurred, her consent could not negate the alleged POCSO offence.

pp. 9–11

The Court considered the relationship and the petitioner’s position potentially relevant as mitigating circumstances, including in relation to bail, but not as grounds to quash the charge-sheet.

pp. 9–11

It also observed that the petition had been brought by the minor herself without representation by a guardian and held that she was not competent to invoke the extraordinary jurisdiction in that manner.

pp. 9–11