Bombay High Court
Faijan Anwarul Shaikh vs State Of Maharashtra And Anr on 18 November, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:50775-DB
910-WP-1142-2023.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1142 OF 2023
WITH
INTERIM APPLICATION (STAMP) NO.15913 OF 2023
IN
CRIMINAL WRIT PETITION NO.1142 OF 2023
Faijan Anwarul Shaikh ... Petitioner
Versus
The State of Maharashtra & Anr. ... Respondents.
Mr.Mitesh Varshney for the Petitioner.
Ms.Supriya Kak, APP for the State.
CORAM : BHARATI DANGRE &
SHYAM C. CHANDAK, JJ.
DATE : 18th NOVEMBER, 2025.
ORAL JUDGMENT (PER BHARATI DANGRE, J) :
1. Rule. Rule is made returnable forthwith.
2. The Criminal Writ Petition filed by the Petitioner seek relief
of quashing and setting aside FIR No.482/2018 registered on
30/10/2018 with D.N. Nagar Police Station by family member of
RAJSHREE by RAJSHREE
KISHOR KISHOR MORE
MORE Date: 2025.11.25
10:47:19 +0530
910-WP-1142-2023.doc
Respondent No.2, which invoked Section 363, 366, 376(2)(N),
506 of the Indian Penal Code, 1860 and Section 4,6,8 and 12 of
The Protection of Children from Sexual Offences Act, 2012 (for
short "POCSO Act"). On completion of investigation the charge-
sheet came to be filed and the case is registered as Case No.17 of
2019.
In the subject FIR, the Petitioner was arrested and was
released on bail. He raised a defence in all the proceedings, that
the Petitioner and the victim knew each other well and shared a
love relationship and they frequently used to meet each other and
the relationship developed between them was consensual in
nature.
Out of this love and affection they performed marriage on
14/03/2022 as per Muslim rites and customs, and out of the wed-
lock a female child was born. Therefore, praying that the offence
was registered on account of misunderstanding, the Petitioner
seek quashing and setting aside of the pending criminal case
arising out of FIR No.482/2018, invoking the provisions of Indian
Penal Code as well as The Protection of Children from Sexual
Offences Act, 2012, since the girl with whom he shared the
relationship was minor at the relevant time.
910-WP-1142-2023.doc
3. Ajman Abdullhaq Shaikh @ Ajman Faijan Shaiikh, has filed
an Affidavit affirmed on 16/12/2022, wherein she categorically
state that she married the Petitioner on 14/03/2022 and a child
is born out of the relationship and, therefore, she has accorded
her consent to quash the FIR as she want to continue her marital
life with the Petitioner and the minor child.
4. Today when the matter is listed before us, the girl , now
aged 23 years is present before us and she has filed a fresh
Affidavit which is affirmed by her on 18/11/2025, wherein, she
makes the following statement :-
"4. I say that I have now married with the petitioner on 14/03/2022
and due to the wedlock between myself and the petitioner a female
child is born namely 1. Waniya Faizan Shaikh (DOB 15/03/2022), 2.
Aleena Faizan Shaikh (DOB 08/04/2024) and third child is in the
womb."
Categorically stating that her mother had filed the FIR
against the Petitioner, but since she want to continue the marital
life with the Petitioner and the two minor children, with the third
child on its way out in the world, she request the Court to quash
the FIR registered against the Petitioner.
5. A peculiar situation has been placed before us, that the
910-WP-1142-2023.doc
Petitioner faces accusation under POCSO Act, but in the wake of
change in circumstances, the girl with whom he established
relationship has now turned major and not only that, but on being
released on bail, he performed Nikah with her and two children
are born out of the said relationship and they are once again on
the family way.
6. "Law without justice is a wound without cure."
William Scott Downey
It is true that the POCSO Act is a special statute enacted for
preventing child abuse, child being considered to be below 18
years of age and the offence committed under the said Act is
considered to be a serious offence. However, in the peculiar facts,
when we find that the relationship maintained between the two,
was consensual though at the relevant time the consent of the
victim girl did not matter as she was below 18 years, but on
attaining majority she chose to perform Nikah with the
Petitioner and not only this, there are two children born out of
the relationship , clearly indicating that the two have decided to
live their life as husband and wife and completed their family by
giving birth to two children and expecting a third child.
910-WP-1142-2023.doc
7. In these circumstances, in our opinion, prosecuting the
Petitioner merely because he had indulged into sexual act with a
minor girl at the relevant time, would not according to us result
in justice though we may implement the law but it would be under
pretention that we are doing justice, as offence of rape is
considered to be a heinous offence which is not only an offence
against an individual, but against the society as a whole.
But if we do not consider the unusual situation that has
emerged as on date, and if we permit the trial to be continued
against the Petitioner, and if it result into a conviction, a
situation would emerge where Petitioner will be required to
undergo the sentence for committing the offence and on the other
hand, his wife alongwith the three children would be left to fetch
for themselves and this definitely is not the intended purpose of
any enactment, as conviction would not only result in
punishment to him, but it would be a punishment for his wife as
well as the children born out of the relationship involving love
and affection.
8. We must note that it is not the first time that such a
910-WP-1142-2023.doc
situation has arisen before any Court of law and we are guided by
the decision of the Apex Court. This situation arose before the
Apex Court in case of Mahesh Mukund Patel vs. State of U.P. &
Ors.1, When an offence was registered under POCSO Act since the
girl was minor at the relevant time, but subsequently on
attaining majority the marriage was performed and an Affidavit
was filed by her before the Court, where she accepted the fact
that she was happily married to the Petitioner and they have
been residing together. Considering it to be a fit case where the
High Court ought to have exercised the jurisdiction under Section
482 of the Cr.P.C. by quashing the proceedings, by recording a
conclusion that no purpose would be served by continuing the
prosecution as it will cause undue harassment to the Appellant,
his wife as well as the children, the order passed by the High
Court was set aside and the proceedings were quashed.
9. In the recent decision of the Apex Court in K. Kirubakaran
vs. State of Tamilnadu (Criminal Appeal No. 679/24), once again
the Apex Court by invoking power under Section 142 of the
Constitution of India for quashing the conviction and sentence
1 2025 SCC OnLine SC 614
910-WP-1142-2023.doc
imposed under the provisions of POCSO Act, noted that a balance
need to be struck between the competent interest of justice,
deterrance and rehabilitation. It was noted that in order to do
"complete justice" in proper cases, in the peculiar facts and
circumstances, a balanced approach combining practicality and
empathy is necessary. Their Lordships of the Apex Court
specifically noted thus :-
" The appellant and the victim are not only legally married, they are
also in their family way. While considering the offence committed by
the appellant punishable under the POCSO Act, we have discerned that
the crime was not the result of lust but love. The victim of crime
herself has expressed her desire to live a peaceful and stable family life
with the appellant, upon whom she is dependent, without the appellant
carrying the indelible mark on his forehead of being an offender.
Continuation of the criminal proceedings and the appellant's
incarceration would only disrupt this familial unit and cause
irreparable harm to the victim, the infant child, and the fabric of
society itself."
With the aforesaid observation the Appeal was allowed
keeping in mind the future prospect of the Appellant's wife and
their children, but with a word of caution that the observations
shall not be treated as a precedent for any other case.
10. In Mushtak Attar vs. State of Goa & Ors. (Criminal Writ
Petition No.550/2025 (F), to which one of us (Bharati Dangre, J)
was a party, when the similar facts emerged, as the victim at the
910-WP-1142-2023.doc
relevant time was a minor being aged 17 years and 4 months and
despite the complaint being lodged by her father, she continued
her relationship with the accused and gave birth to a male child
and even performed marriage with him on attaining majority and
accorded her no objection to quash the proceedings against the
Petitioner, by invoking the principle laid down in Mahesh Patel
(supra), the criminal proceedings in form of sessions case
pending before the Fast Track Court, POCSO, Panji was quashed
and set aside.
11. In the wake of a similar scenario once again appearing
before us, we are inclined to grant a similar relief, as we find that
by not quashing the said proceedings, in the situation where the
Petitioner and the victim girl stand, being now married, and
particularly when we enquired with her when she presented
herself during the proceedings, and she informed us that she
has lost her parents and there is no one to take care of her, but
for the accused, we feel that without any family support, she
definitely would not be in a position to take care of her two
children and also the new born.
Upon the Petitioner and the victim being present before us
910-WP-1142-2023.doc
alongwith their children, we could see a family being complete
and, therefore, we do not deem it appropriate to continue the
prosecution against the Petitioner as continuing the same would
amount to abuse the process of law and that definitely would not
amount to 'justice' and definitely under the pretention of justice,
we do not intend to cause injustice to the couple and their
children.
12. For the reasons stated above, following order is passed :
i) FIR No.482/2018 registered on 30/10/2018 with D.N. Nagar
Police Station, invoking Section 363, 366, 376(2)(N), 506 of the
Indian Penal Code, 1860 and Section 4,6,8 and 12 of The
Protection of Children from Sexual Offences Act, 2012, is quashed
and set aside.
In the wake of above, Writ Petition is disposed off.
(SHYAM C. CHANDAK, J.) (BHARATI DANGRE, J.)
