Can bail be granted under POCSO Act when the victim is a minor but consents to the relationship and has borne a child?

Yes. The Himachal Pradesh High Court held that where a minor victim voluntarily enters into marriage with the accused, cohabits, and bears a child, and expresses a desire to continue the relationship, bail may be granted despite the statutory age of consent, as the circumstances invoke judicial compassion under Article 21 and the principle of presumption of innocence.

Is the consent of a minor irrelevant in POCSO cases under all circumstances?

While the law treats consent of a minor under 18 as legally irrelevant for establishing the offence, courts may consider it in bail proceedings to assess the nature of the relationship, risk of witness tampering, and impact on the victim’s welfare, as clarified in K. Kirubakaran v. State of T.N. and applied by the Himachal HC.

Does filing of a charge sheet affect the grant of bail in POCSO cases?

Yes. Once the charge sheet is filed and no further evidence remains to be collected, the justification for continued pre-trial detention weakens significantly. Courts may view such cases as less likely to involve flight risk or evidence tampering, making bail more tenable under Section 483 BNSS.

POCSO bail for married couple with child Himachal Pradesh HC

The Himachal Pradesh High Court has granted regular bail to an accused under the Protection of Children from Sexual Offences Act and Bharatiya Nyaya Sanhita, recognizing that where a minor victim consents to a relationship, marries the accused, and bears his child, continued incarceration disrupts the family unit and violates the presumption of innocence. The judgment underscores that bail is not punishment and must be granted unless necessity demands detention.

Background & Facts

The Dispute

The petitioner, Suneel Kumar, was arrested on 5.1.2026 in connection with FIR No. 5 of 2026 registered at Police Station Chowari, District Chamba, Himachal Pradesh. The FIR was filed under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), alleging sexual intercourse with a minor girl. The case arose after Civil Hospital Chowari reported the arrival of a minor girl for childbirth on 15.1.2026. The girl, then aged 16 years and 10 months, was accompanied by the petitioner, who claimed to be her husband. No documents proving her age or marital status were produced.

Key Facts

The victim-prosecutrix was born on 5.3.2009, making her 16 years and 10 months old on 15.1.2026
She and the petitioner had solemnized marriage prior to the incident, as per her statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
The couple had been residing together in the petitioner’s parental home since the marriage
The victim gave birth to a child on 15.1.2026
The FIR was not lodged by the victim or her family; it was initiated by hospital authorities
The charge sheet was filed on or before 17.3.2026; no further evidence remains to be collected
The victim appeared before the High Court with her mother-in-law and affirmed her voluntary relationship with the petitioner
The victim stated she was not coerced and wished for the petitioner’s release to raise their child together

Procedural History

15.1.2026: Minor girl brought to Civil Hospital Chowari for delivery; hospital reports incident to police
5.1.2026: FIR No. 5 of 2026 registered; petitioner arrested same day
17.3.2026: State filed status report; SI Pradeep Kumar appeared with case records
2.4.2026: Petitioner filed Cr.MP(M) No. 396 of 2026 under Section 483 of BNSS seeking regular bail
2.4.2026: High Court heard arguments and delivered oral judgment granting bail

Relief Sought

The petitioner sought regular bail on the grounds that:

The victim-consenting minor had voluntarily entered into marriage
A child had been born from the union
The victim desired the petitioner’s release to co-parent
The charge sheet was filed and no further investigation was pending
Continued incarceration would cause irreparable harm to the child and victim

The Legal Issue

The central question was whether the court could grant regular bail to an accused under Section 6 of the POCSO Act and Section 64(2) of the BNS when the victim, though a minor, has voluntarily married the accused, borne his child, and expressed a clear desire to continue the marital relationship, and when the charge sheet has been filed with no risk of evidence tampering or flight.

Arguments Presented

For the Petitioner

Mr. Vijay Chaudhary, Advocate, submitted that the victim’s statement under Section 183 BNSS confirmed the marriage was solemnized with her full consent and that she had been living with the petitioner since then. He argued that the crime, though technically punishable under POCSO, was not one of lust but of love, and that incarceration would inflict greater harm on the victim and child than the accused. He relied on K. Kirubakaran v. State of T.N. to argue that justice must accommodate compassion where the family unit is intact and the victim seeks stability.

For the Respondent

Mr. Ravi Chauhan, Deputy Advocate General, acknowledged that the victim’s testimony rendered conviction unlikely, but contended that the gravity of the offence under POCSO and BNS precluded bail. He argued that consent of a minor is legally irrelevant under POCSO, and that the law must be applied uniformly regardless of personal circumstances. However, he fairly conceded that the prosecution’s case was weak and that the victim’s stance undermined the state’s case.

The Court's Analysis

The Court conducted a detailed review of the victim’s statement recorded under Section 183 of BNSS, which revealed no coercion, no forced intercourse, and a clear expression of love and voluntary cohabitation. The Court noted that the FIR was initiated by a third party (the hospital), not the victim or her family, and that the victim had since appeared in court with her mother-in-law to affirm her marital status and desire for the petitioner’s release.

"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."

The Court relied on K. Kirubakaran v. State of T.N. (2025 SCC OnLine SC 2307), where the Supreme Court held that while statutory provisions cannot be bypassed, courts must balance legal rigidity with compassionate justice when the victim’s welfare and family integrity are at stake. The Court emphasized that the object of bail is not punitive, and that deprivation of liberty before conviction is a serious infringement of Article 21.

The Court also cited Sanjay Chandra v. CBI and Manoranjana Sinha v. CBI to reaffirm that bail is not a reward or punishment, but a mechanism to ensure trial attendance. Given that the charge sheet was filed, no evidence remained to be collected, and the accused had not absconded or obstructed investigation, the Court found no basis to deny bail on grounds of flight risk or witness tampering.

The Court further held that the victim’s candid testimony, coupled with the birth of a child, rendered the prosecution’s case inherently weak. To detain the petitioner indefinitely would violate the presumption of innocence and inflict disproportionate harm on the child and the victim.

The Verdict

The petitioner succeeded. The Court granted regular bail subject to the following conditions:

Personal bond of Rs. 50,000 with one local surety of like amount, to be furnished before the Chief Judicial Magistrate/trial court
The petitioner shall appear before the trial court on all hearing dates
He shall not tamper with evidence, influence witnesses, or obstruct investigation
He shall not leave India without prior court permission
Any breach of conditions shall lead to immediate cancellation of bail

The Court clarified that its observations do not reflect on the merits of the case and are confined to the bail application.

What This Means For Similar Cases

Practitioners must now argue that in POCSO cases involving consensual relationships resulting in marriage and childbirth, courts may exercise discretion to grant bail even if the victim is under 18
The victim’s testimony and desire for family unity are now recognized as material factors under Section 439 CrPC and Section 483 BNSS
Prosecution’s reliance on the mere age of the victim is insufficient if the relationship is consensual and stable

Bail Is Not a Punishment - Even in Heinous Offences

The judgment reinforces that pre-trial detention must be justified by necessity, not gravity alone
Courts must assess: (a) likelihood of flight, (b) risk of evidence tampering, (c) victim’s welfare, and (d) impact on child
Where charge sheet is filed and no investigation remains, detention loses its procedural justification

Judicial Compassion Is a Legally Recognized Principle

K. Kirubakaran is now binding precedent for POCSO bail applications involving marital unions
Courts may consider social and emotional realities without compromising legal principles
Advocates should file affidavits from victims and family members affirming voluntary union and desire for accused’s release

POCSO Act | Consensual Marriage + Childbirth Justify Bail Despite Minor Victim: Himachal Pradesh HC Reinforces Family Unity Over Strict Liability