Bombay High Court

Mirza Aslam Beigh Rashid Beg And Others. vs State Of Maharashtra Thr Pso Telhara Ps ... on 26 September, 2025

2025:BHC-NAG:9835-DB


                                                                     apl.1128.2025.judgment.odt
                                                    (1)

                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH : NAGPUR

                       CRIMINAL APPLICATION (APL) NO.1128 OF 2025

                1.     Mirza Aslam Beigh Rashid Beigh,
                       Aged 29 Years, Occupation : Labourer,
                       R/o. Ward No.1, Near Jama Masjid,
                       Taluka Malegaon, District Washim.

                2.     Shaikh Shafique Shaikh Barkat,
                       Aged 45 Years, Occupation: Labourer,

                3.     Shaheda Bi Shaikh Shafique,
                       Aged 43 Years, Occupation: Household,
                       A2 & A3 both R/o Ghodegaon,
                       Taluka Telhara, District Akola.             ..... APPLICANTS

                                             // VERSUS //


                1.     State of Maharashtra,
                       Through Police Station Officer,
                       Telhara Police Station,
                       Taluka Telhara, District Akola.

                2.     Rahul Popatrao Tayade (Complainant)
                       Aged 42 Years, Occupation : Police Constable,
                       Telhara Police Station,
                       Taluka Telhara, District Akola.

                3.     XYZ (Prosecutrix in Cr. No.196/2025)
                       Police Station Telhara,
                       Taluka Telhara, District Akola.          ....NON-APPLICANTS
                -------------------------------------------
                        Mr. S. V. Sirpurkar, Counsel for the applicants.
                        Ms. Sneha Dhote, APP for the non-applicant No.1/State.
                        Mr. Yash Venkatraman, Counsel for non-applicant no.3.

                -------------------------------------------

                                     CORAM : URMILA JOSHI-PHALKE AND
                                            NANDESH S. DESHPANDE, JJ.
                                     RESERVED ON     : 11.09.2025
                                     PRONOUNCED ON : 26.09.2025

                JUDGMENT :

(PER: URMILA JOSHI-PHALKE, J.) apl.1128.2025.judgment.odt

1. Present applicants seek exception to challenge, at the

initial stage, the First Information Report (for short "the FIR") in

connection with Crime No.196/2025 registered with Telhara Police

Station, District Akola, on 02.07.2025, for the offence punishable

under Section 64(1) of the Bharatiya Nyaya Sanhita, 2023, under

Sections 4(1) and 8 of the Protection of Children from Sexual

Offences Act (for short 'the POCSO Act') and under Sections 9, 10,

11 of Prohibition of Child Marriage Act, 2006.

2. Brief fact which are necessary for the disposal of the

application are as under:

Police Head Constable Rahul Tayade attached to Telhara

Police Station lodged report at Police Station, Telhara on

01.07.2025 informing that on 24.06.2025, he received an

information that, the victim had delivered a baby boy at Fatima

Nursing Home, Akola on 10.05.2025. The age of the victim at the

time of marriage was 17 years. Her marriage was solemnized with

accused Mirza Aslam Beigh. As per his allegations, she was

subjected for the forceful sexual assault when she was minor. On

the basis of the said report, Police have registered the crime against

the present applicants.

3. The present application is filed by the applicants, who is

husband and other family members, on the ground that there was a

love affair between the applicant No.1 and the victim. After the apl.1128.2025.judgment.odt

families became aware about the said love affair, they performed

the marriage of the applicant No.1 with the victim according to the

Muslim rites and rituals on 02.06.2024. On the said date, the

victim was yet to complete the age of 18 years, hence the marriage

came to be legally registered after she completed the age of 18

years. As per the ground raised in the application that out of a love

affair, the applicant No.1 and the non-applicant No.3 have

performed the marriage. There was a physical relationship between

them which resulted into the delivery of a child by the victim girl

and now the marriage has already been performed between them.

If the applicant is prosecuted and punished, then she herself and

her child would suffer as there is no one to look after them. There

is remote possibilities that she will be accepted by him if she stays

in the society. The non-applicant No.3 has no objection for the

same. She appeared through her Counsel and raised no objection

on the ground that the applicant No.1 has not subjected her for the

forceful sexual assault at any point of time. As far as the applicant

Nos.2 and 3 are concerned, they have no connection with the

alleged offence and therefore, the non-applicant No.3 has no

objection to quash the FIR.

4. Heard learned Counsel Mr. Sirpurkar for the applicants

and learned APP Ms. Dhote for the State and learned Counsel

Mr. Yash Vakatraman for the non-applicant No.3.

apl.1128.2025.judgment.odt

5. Learned Counsel for the applicants submitted that even

it is considered that the non-applicant No.3 was minor at the time

of the incident, but it is a relationship between two adolescents.

Out of love affair, the physical relationship was developed between

them. Now, the marriage is already performed with all

understanding about the consequences. If the proceeding is not

quashed, then there is a possibility of rift between the relationship

and ultimately the victim would be the sufferer. The statements of

the parents also show that there was love affair between the victim

and the present applicant No.1 and as soon as they came to know

about the same, they have performed the marriage. Though the

girl appears to be minor, this is a case of adolescents love affair.

The girl and the applicant No.1 are living peacefully and therefore,

this case should be taken as an exceptional case. He placed

reliance on:

(1)Nauman Suleman Khan Vs State of Maharashtra and another reported in 2022 SCC OnLine Bom 1148,

(2)Ankush s/o Vilasrao Pakhale Vs. State of Maharashtra and another in Criminal Application (APL) No.706/2024 decided on 11.11.2024, and

(3) Mahesh Mukund Patel Vs. State of U.P. and others reported in 2025 SCC OnLine SC 614.

6. Per contra, learned APP strongly opposed the said

application, on the ground that the Police Officer who has lodged apl.1128.2025.judgment.odt

the report on behalf of the State on the ground that the applicant

No.1 is 29 years old, whereas the victim is below 17 years of age.

He had knowledge about the age of the girl and despite of that

there was no consent to the said marriage and even if the consent

is there which is not relevant, the marriage was performed by the

present applicants and therefore, as prima facie case reveals

against the present applicants, the application deserves to be

rejected. She further submitted that the applicant No.1 has kept

physical relationship with the girl, who was admittedly minor. Her

consent cannot be considered as a consent within the provisions of

the law. The victim girl became pregnant and gave birth to the

child. This fact is not denied in the affidavit by the applicants as

well as the victim. In view of that, the application deserves to be

rejected.

7. Learned Counsel for the non-applicant No.3 - victim

supported the contention of the applicants and submitted that

considering the fact that now victim is settled in her life as marriage

is performed and therefore, the application deserves to be allowed.

In support of this contention, he placed reliance on the decision of

the Kerala High Court in X Vs. State of Kerala and another

reported in 2025 SCC OnLine Ker 2295.

8. Before entering into the merits of the case we would like

to refer the decision of the Hon'ble Apex Court in the case of Right apl.1128.2025.judgment.odt

to Privacy of Adolescents, Suo Motu Writ Petition (C) No.3 of

2023 with Criminal Appeal No.1451 of 2024, decided on 23 rd

May 2025, wherein the Hon'ble Supreme Court has shown concern

regarding criminalization of consensual adolescent relationships

under POCSO Act. Learned Amicus Curiae had prayed for certain

directions to be given to the Central Government to consider

decriminalizing adolescent relationships under POCSO Act and to

frame a national sex education policy and the Hon'ble Supreme

Court had given certain directions to the Central Government and

asked to consider the implementation of the suggestions of the

learned Amicus Curiae based on the report. It appears that the

final directions are already given by the Apex Court in the following

manner:

It is directed by the Apex Court that:

We direct the State to take following measures:

"i) To act as a true guardian of the victim and her child;

ii) To provide a better shelter to the victim and her family within a period of few months from today;

iii) To bear the entire expenditure of the education of the victim till Xth standard examination and if she desires to take up education for a degree course, till the completion of degree course. After she passes her Xth standard examination, the State can offer apl.1128.2025.judgment.odt

her vocational training, obviously, at the cost of the State;

iv) To bear the entire expenditure of the education of the child up to Xth standard and ensuring that she is educated in a very good school in the vicinity of the place of residence of the victim; and

v) To endeavour to take the assistance of NGOs or public-spirited citizens for the purpose of securing the debts incurred by the victim as a one-time measure."

9. The Hon'ble Apex Court further issued notice to the

Union of India through the Secretary of the Ministry of Women and

Child Development and directed to serve the notice to the said

Secretary. It is further directed that the Secretary of the Ministry of

Women and Child Development shall appoint a Committee of

experts to deal with the suggestions of the learned amicus curiae.

Senior officers of the State shall be a part of the Committee. If

necessary, the Committee can also consult the learned senior

counsel appointed as amicus curiae. Immediately on service of

notice, the Secretary shall constitute a Committee. The members of

the Committee constituted by this Court shall be permanent invitees

to the said Committee; and the Committee shall submit a detailed

report before the returnable date to this Court. To consider the

implementation of the suggestions of the learned amicius curiae apl.1128.2025.judgment.odt

based on the said report, this Court will pass further directions from

time to time.

10. It appears that the final directions are still awaited. The

Central Government has filed its response before the Apex Court.

The copy of the response is also placed on record by the learned

Counsel for the applicants. The stand taken by the Union of India in

the reply is that reducing the age of consent would reintroduce the

very mischief the law was enacted to prevent. The amendment in

the said enactment serves the legitimate state interest of protecting

minors from sexual exploitation and ensuring that welfare of child is

paramount and therefore, submitted that the existing age of

consent ought to be retained in order to give full effect to the

legislative intent, protect the bodily integrity of children, and uphold

the constitutional and statutory safeguards accorded to them.

11. The Union of India further submitted that the State

possesses a legitimate constitutional and legal interest in

prescribing and maintaining minimum age of consent, in furtherance

of its obligation to protect children for exploitation, and such a

legislative framework, is a reasonable and proportionate exercise of

its power under Articles 14, 15, 21, 39(f) of the Constitution of

India. It is further stand of the State that the State has a legitimate

interest in regulating social practices through legislation. Law is not

tailor made for individuals but for society at large and hence, till the apl.1128.2025.judgment.odt

time the mischief remains, the relevance of the law remains. It is

further stand of the Union of India that reducing the age of consent

undermines the principle of fresh start and disproportionately

burdens the child victims contrary to constitutional and statutory

mandates.

12. In the background of the above proceeding which is

pending before the Hon'ble Apex Court, it would be relevant to

consider the object with which the Protection of Children from

Sexual Offences Act was introduced. The primary object of

Protection of Children from Sexual Offences (POCSO) Act are to

protect all children under 18 from sexual assault, sexual

harassment and child pornography and to provide a supportive

environment for child victims. The act ends to achieve this part

strengthening legal provisions against child sexual abuse,

mandating the reporting of offences to prevent under reporting,

establishing special Courts for speedy trials and creating the child

friendly legal process that protects the victim's identity and mental

health. The Act was introduced to protect children. Now the

question is what should be the age group to consider that it is

adolescent love or love between two adolescents and now the said

issue is pending before the Hon'ble Apex Court. This aspect is

already dealt by the co-ordinate Bench in the case of Aakash s/o

Nanasaheb Waghmare Vs. The State of Maharashtra and apl.1128.2025.judgment.odt

another in Criminal Application No.2514/2024, decided on

25th June 2025 and by referring the decision of K. Dhandapani

vs. State by the Inspector of Police, 2022 SCC Online SC

1056, observed that when the offence was committed, the

prosecutrix was aged 14 years. She gave birth to the first child

when she was 15 years and the second child was born when she

was 17 years of age. The Hon'ble Apex Court in clear terms

observed that, "In the peculiar facts and circumstances of this case,

we are of the considered view that the conviction and sentence of

the appellant who is maternal uncle of the prosecutrix deserves to

be set aside in view of the subsequent events that have been

brought to the notice of this Court." It is observed by the co-

ordinate Bench that there was a full-fledged trial wherein accused

was convicted by the Special Judge, confirmed by the High Court

and then the matter reached the Hon'ble Supreme Court. The entire

evidence was before the Hon'ble Supreme Court when the matter

was heard. Even with directions by the Hon'ble Supreme Court on

8th March 2022, it was directed that the District Judge should

record the statement of the prosecutrix about her present status

and that subsequent events were then considered. The powers

those were exercised in that matter by the Hon'ble Supreme Court,

were under Article 142 of the Constitution of India and therefore,

the said cannot be considered while considering the present

compromise or prayer based upon the so-called compromise. The apl.1128.2025.judgment.odt

other decisions which the applicant wants to rely on are of Co-equal

Bench and taking into consideration the facts, the powers then

exercised.

13. The Co-ordinate Bench also considered the scientific

reason for making the rule for age of marriage and observed that

despite of the prohibition the child marriages are extensively taking

place in spite of the efforts by the Government to educate the

people about the hazards of the child marriages. The teenage

pregnancy would be the second social problem. When such child

marriages take place there is a risk of complication related to

pregnancy and some may result in death. There is also higher risk

of premature births of the children to minor mothers with other

health problems. When such social menace is there, that is also

required to be considered by this Court.

14. In the light of the above observation and the object of

the Protection of Children from Sexual Offences Act by turning to

the facts of the present case, if we consider the recitals of the FIR,

it can be seen that she fell in love with the applicant No.1 and as

there was acceptance on their relationship from both the families,

the marriage was performed. Though she states that the said

marriage was as per the Muslim rites and religion, but at the time of

marriage, she was below 18 years of age. When she delivered the

child at the relevant time also, she was below 18 years of age. The apl.1128.2025.judgment.odt

fact which cannot be brushed aside is that the applicant No.1 is 29

years of age and at the time of incident, or alleged marriage, he

was approximately 27 years of age. At least, he ought to have

understood that he should wait till the girl attains 18 years of age.

Then in spite of having knowledge that the girl is minor, when he

takes her away from the legal custody of her parents, from that

point itself he commits the offence. Merely because now the girl has

given birth to the child, we are of the opinion that the acts of the

applicants cannot be brushed aside.

15. Learned Counsel for the applicants though submitted

that now the issue is raised before the Apex Court as to the

adolescent relationship cases still the final directions are not issued

by the Hon'ble Apex Court. The copy of the reply filed by Union of

India is placed on record. On perusal of the said reply, the stand of

the Union of India is that reducing the age of consent would

reintroduce the very mischief the law was enacted to prevent. The

amendment in the said enactment serves the legitimate state

interest of protecting minors from sexual exploitation and ensuring

that welfare of child is paramount. Accordingly, it is submitted that

the existing age of consent ought to be retained in order to give full

effect to the legislative intent, protect the bodily integrity of

children, and uphold the constitutional and statutory safeguards

accorded to them. The further stand of the Union of India shows apl.1128.2025.judgment.odt

that the State possesses a legitimate constitutional and legal

interest in prescribing and maintaining minimum age of consent, in

furtherance of its obligation to protect children for exploitation, and

such a legislative framework, is a reasonable and proportionate

exercise of its power under Articles 14, 15, 21, 39(f) of the

Constitution of India. It further stated that the law is not tailor

made for individuals but for society at large and hence, till the time

the mischief remains, the relevance of the law remains. It is further

stated before the Hon'ble Apex Court that the State has a legitimate

interest in regulating social practices through legislation. Thus, the

stand taken by the Union of India before the Apex Court is also that

the reducing the age of consent undermines the principle of fresh

start and disproportionately burdens the child victims contrary to

constitutional and statutory mandates. It is further contention of

the Central Government that the determination of 18 years as a

threshold age for majority is not arbitrary or isolated to only child

protection laws. It is consistent and well-established statutory

standards across the legal framework in India. Thus, the stand

taken by the Union of India if taken into consideration, which shows

that as per the contention of the State, the purpose of POCSO Act is

to treat the minors as a class by itself and treat them separately so

that no offence is committed against them as regards sexual

assault, sexual harassment and sexual abuse. The said purpose is

to safeguards the interest and well being of the children at every apl.1128.2025.judgment.odt

stage of judicial proceeding. The POCSO Act is gender neutral and

criminalizes sexual activity by those below of the age of eighteen.

Under the said Act, factual consent in a relationship between minors

is immaterial. The provisions contained in POCSO Act does not in

actuality prevent adolescents from engaging in consensual sexual

activity. Such activity continued to take place and sometimes leads

to consequences such as pregnancy.

16. In view of the stand taken by the Central Government

before the Hon'ble Apex Court and considering the facts that victim

was below 18 years of age at the time of marriage, as well as when

she was subjected for the physical relationship. Unless the things

are clarified by the Central Government upon directions of the

Hon'ble Supreme Court, we are unable to consider such cases. The

decision of the Hon'ble Apex Court in Anversinh @ Kiransinh

Fatesinh Zala Vs. State of Gujarat reported in 2021 (3) SCC

12, wherein it has been held that:-

"where a minor girl under Section 361 of IPC (under 18 years of age) is taken or enticed from the keeping of her lawful guardian without her consent, her own consent is not valid defence to the charge of kidnapping. Minors are deemed incapable of giving lawful consent and Section 361 of IPC prioritizes the guardian's right to protect the minor's physical safety. An infatuation and consensual relationship with the accused does not automatically negate the offence of kidnapping a minor."

apl.1128.2025.judgment.odt

17. In view of the above observation, as the consent of the

minor is irrelevant and the stand taken by the Central Government

before the Hon'ble Aepx Court also shows that it would be against

the mandate of the Constitution of India, as law is not for the

individuals but for society at large.

18. If a relief provided under statute could be obtained only

by following a certain procedure made therein for that purpose, that

procedure must be followed, if he is to obtain that relief. Justice

has got to be done according to law.

19. In the light of the above object behind the enactment of

Protection of Children from Sexual Offences Act, and considering the