The Protection-Destruction Paradox: The Doctrinal Collision between POCSO and Family Law

*Anant Sharma & Disha Joshi

Introduction

The Preamble to the Convention on the Rights of the Child describes family as “the fundamental group of society and the natural environment for the growth and well-being” of every child. Yet, in Harmeet Singh v. State (GNCT of Delhi) & Anr., the Delhi High Court found that it was the State that stood ready to dismantle the family it claimed to protect. The woman appearing before the Court was no longer just the prosecutrix in a criminal trial. She was a wife, a mother, and the party petitioning to save a marriage from the very law meant to protect her. Under the Protection of Children from Sexual Offences Act, 2012 (POCSO), the relationship at the centre of that household which begun while she was still a minor is not treated like a marriage at all, but as an offence. The case therefore raises the question not only of the doctrinal justification for POCSO’s irrebuttable presumption of harm, but also of what is left of a marriage, a home, and the child born of it, once criminal law refuses to see any of them. This piece raises the question, narrowly: when POCSO’s presumption of harm and the Prohibition of Child Marriage Act’s voidability regime pull a family in opposite directions, should courts continue to decide on the factual matrix case by case or does the Parliament needs to align the two statutes? This piece argues for the latter.

This erasure of consent occurs via a legal fiction in POCSO. Because POCSO treats the fact of the party’s minority as conclusive proof of harm, a minor’s stated consent has no legal weight: it cannot be raised as a legal defence, however genuine it may have been. In cases involving real child abuse, this absolute assumption makes POCSO a powerful instrument for protection: a predator cannot escape liability by claiming the child agreed. However, the same fiction when used without consideration to context, can turn a protective statute into an instrument that prosecutes the very relationship it was meant to shield including a marriage the minor herself, now an adult, wishes to preserve.

Harmeet Singh and Limits of POCSO

Harmeet was seventeen when a man who would become her husband, then twenty-two, was booked under Section 64(1) of the Bharatiya Nyaya Sanhita and Section 6 of the POCSO. The FIR was not lodged on her complaint, it was registered automatically after the doctors of the hospital, where she went to deliver their child, under an obligation under Section 21 of the Act had to report her age. By the time the case came to be heard by the Delhi High Court she had attained majority, married the man, and was raising her son with him. She did not file any complaint and neither did she consider herself a victim, she petitioned to have the FIR against her husband quashed. The court framed this issue concisely. She was a victim by operation of law (‘de jure’), but not a victim in fact (‘de facto’), and the strict interpretation of the law could have dire consequences to her family. The letter of the law does not provide any guidance and remains silent in this regard, the court turned to Joel Feinberg's idea of “Crime without a victim” which distinguishes between wrongs and harms, and explains how “not all wrongs are harms and not all harms are wrongs since a harm in the strict sense requires both a setback to interests of the person wronged and a violation of their rights.” In consensual adolescent relationships, the absence of the felt injury suggests that there is no actual harm to the minor. Even then the law disregards the minor’s consent, thereby transforming what could be a non-harmful experience into a crime of a very high degree.

The PCMA Collision

However, Family Law already offers assistance on this topic. According to Section 3 of the Prohibition of Child Marriage Act, 2006 (PCMA), any marriage where one of the parties is a minor at the time is considered as voidable and can be annulled by choice of the individual. The choice is with the girl; she may choose to annul or affirm the marriage within two years of them attaining the age of majority. Until then the marriage stands.

POCSO and PCMA are not drafted to address the same question, and statutes with different aims can overlap each other without any real difficulty, what usually matters is simply which one governs a given fact pattern. The trouble here is that neither statute is drafted to defer to the other once they meet on the same facts, and there still lacks a harmonised consideration. PCMA gives Harmeet Singh two years after majority to decide in her own time whether her marriage should stand. POCSO's criminal process began the moment an intimate relationship did, and does not stop for that decision, because her decision was never the relevant question under Section 6 of POCSO.  This is not a legal gap that mere interpretation can fill: it is a contradiction between a criminal statute drafted with an unmoving presumption and a family-law statute drafted to provide the minor with eventual agency, and neither Parliament nor the courts have ascertained which should yield.

Two Statuses That Cannot Speak to Each Other

This contradiction also has a definitional root. Section 2(2) of the POCSO refers to the CrPC and its subsequent version in the form of BNSS, under which the victim is defined as one who has “suffered any loss or injury caused by reason of the act or omission of the accused”. A literal reading of this definition raises a question about whether any harm was caused. POCSO is not concerned with this “harm” at all since Parliament made the sole fact of being a minor enough to conclusively prove harm, a choice that cannot be reinterpreted through judgements by a court. The consequence of this situation is that one and the same person can become a victim of crime as well as a legally married wife, two statuses that sit on separate legal planes and cannot cancel each other out. Her marriage is no defence to the criminal charge, and the criminal charge cannot undo her marriage.

When Families Weaponize the Law

However, there has been difference in opinion among the courts on how to handle this inconsistency. In situations where the de jure victim repudiates any damage suffered, and the couple later get married with an offspring involved, the courts have usually quashed proceedings to avoid re-victimization. This was observed in the ratio given by the Supreme Court in K. Kirubakaran v. State of Tamil Nadu and Mahesh Mukund Patel v. State of U.P, both involving couples who had married and were raising children by the time the matter reached the Court. On the contrary, some courts have declined to quash FIRs of similar nature on grounds that it constitutes judicial approval of child marriage, such as in Saivan v. State (NCT of Delhi), refusing to quash the FIR despite the parties’ subsequent marriage.

Family Law’s calculus does not turn on criminal procedure, but POCSO’s does, and that is the problem the Apex Court identified in State of U.P. v. Anurudh, many of these cases protects no child at all. They instead convict the adolescents who enter into relationships which are disapproved of by the family, often casting the girl as a pseudo-victim regardless of her own personal choice. In Aman @ Vansh v. State of U.P., the Allahabad High Court pointed out repeated inconsistencies in the age of the prosecutrix for framing the man of a crime that didn’t exist. In the case of Sahil v. State (NCT of Delhi), the Delhi High Court noted the plight of young men caused mainly by the families of women who disapproved of their relationships and sought revenge for protecting their familial “honour”, irrespective of the absence of her “alleged” abuse. What the families cannot accomplish with PCMA through annulment, with custody, or matrimonial proceedings, they instead can accomplish via a criminal statute that requires neither the girl’s consent to prosecute nor her consent to withdraw.

Why Parliament Must Act

The importance of State of U.P. v. Anurudh lies in what it declined to do. The Supreme Court mitigated individual punishments based on the facts at hand, but it stopped short of reading a material or close-in-age exception into Section 6, because Parliament consciously chose not to make when it enacted POCSO. This choice was evident from the review of the POCSO Bill by the Parliamentary Standing Committee. Judicial mitigation, however sympathetic, cannot solve Harmeet’s problem: it can soften a sentence after conviction, but it cannot stop the FIR, the trial, or the criminal record from attaching to a relationship her own family wants preserved.

What Parliament could do is narrower than it sounds. Partners for Law in Development have proposed to the Ministry of Women and Child Development a close-in-age exception for non-exploitative adolescent relationships, paired with a corresponding PCMA amendment. This piece endorses that structure, with an addition: the exception should operate procedurally, not just substantively. Rather than decriminalising an entire age band which risks under-protecting adolescents in genuinely exploitative relationships. Parliament could amend POCSO’s mandatory-reporting provision to give institutions such as hospitals a narrow, recorded discretion not to trigger an FIR where the parties are within a defined age band of each other, are already married, and the minor affirmatively states before a Child Welfare Committee, rather than the police, that she does not consider herself a victim. This keeps the irrebuttable presumption intact wherever a real age or power disparity exists, while routing a Harmeet-type case out of the criminal process at the point of first contact, rather than years later through a High Court’s inherent powers. It also lets PCMA’s voidability regime, which already asks the minor to decide her marriage’s fate within two years of majority, do the job Parliament assigned it. This is consistent with the developing-capacity principle in Articles 5 and 12 of the UN Convention on the Rights of the Child, which recognise that a child’s growing maturity should inform how far adults decide for her.

Conclusion

Harmeet Singh’s case is not really two statutes answering one question inconsistently. It is two statutes answering different questions, neither of which yields when both arise from the same facts. POCSO asks only whether a minor was party to a sexual act; PCMA asks only whether the minor, once grown, wants her marriage to stand. Parliament has not said which question should control when both are in play, so each High Court answers it afresh. Had the prosecution of Harmeet’s husband succeeded, her own considered choice under PCMA would have counted for nothing: her marriage would have survived in fact while her husband carried a criminal conviction, and her son would have grown up with a father recorded as a sex offender for an act his mother has never treated as a crime.

Courts have tried to manage this through interim tools, the Delhi High Court’s own guidelines in Harmeet Singh, or the four-factor approach the Allahabad High Court sketched in Satish Alias Chand v. State of U.P., which asks judges to weigh the context and intentions behind the relationship, the age proximity between the parties, the absence of exploitative intent, and the exercise of judicial discretion before allowing a POCSO case to proceed against a settled couple. These tests do useful work at the margins, but they remain judicial workarounds for a legislative gap, applied unevenly across benches and available only to those who can reach a High Court. The durable fix is the one only Parliament can supply: a narrow, recorded exception to mandatory reporting for close-in-age, non-exploitative relationships, paired with reform of PCMA’s voidability window, so that a family like Harmeet’s does not depend on which bench hears its case, or on being able to afford one, to survive.

*Anant Sharma is a second- year law student pursuing B.Sc. LL.B.(Hons.) at Gujarat National Law University, Gandhinagar.

*Disha Joshi is a second- year law student pursuing B.A. LL.B.(Hons.) at Gujarat National Law University, Gandhinagar.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.