Family Unity and Child’s Welfare Must Prevail: HP High Court Grants Bail to POCSO Accused Husband After Minor Wife Delivers Child [Read Order]

Himachal: The Himachal Pradesh High Court has granted regular bail to an accused under the POCSO Act, taking note of the admitted marital relationship between the accused and the minor girl and the fact that a child had been born out of the union.

The Court further held that the continuous incarceration of the accused would disrupt the family unit and cause irreparable hardship to the minor victim, who would be left alone to raise her child. The petition for regular bail was accordingly allowed, subject to conditions.

The bail petition was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking regular bail in FIR No. 5 of 2026 dated 05.01.2026, registered at Police Station Chowari, District Chamba, Himachal Pradesh, under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act). The petitioner had been in custody since 05.01.2026.

The facts of the case reveal that on 15.01.2026, the police received information from Civil Hospital Chowari, District Chamba, that a minor girl had been brought for delivery of a child. Upon reaching the hospital, the police found the victim-prosecutrix to be a minor. Since the persons accompanying her were unable to produce documents regarding her age or marriage, an FIR was lodged, and the bail petitioner, who claimed to be her husband, was arrested. The challan had since been filed before the competent court, and nothing further remained to be recovered from the petitioner.

Before the High Court, counsel for the petitioner submitted that, at the time of registration of the FIR, the victim-prosecutrix and the bail petitioner had already solemnized their marriage and had come to the hospital for the delivery of a child. It was submitted that although the age of the victim-prosecutrix was less than seventeen years at the time of lodging of the FIR, she had already solemnized marriage with the bail petitioner and had since been residing with his family. It was further contended that the victim-prosecutrix had already given birth to a child and that it would be difficult for her to raise the child in the absence of her husband. Counsel urged that once the factum of marriage and the victim’s happy married life stood established, the petitioner deserved to be enlarged on bail.

The State, represented by the learned Deputy Advocate General, submitted that, keeping in view the gravity of the offence, the petitioner did not deserve any leniency. It was contended that although the victim-prosecutrix claimed to have solemnized marriage with the bail petitioner of her own volition, her consent was immaterial in law given her age, as laid down by the Hon’ble Apex Court. However, the learned Deputy Advocate General fairly admitted that, in view of the stand taken by the victim-prosecutrix before the Court, the chances of conviction of the bail petitioner were very remote.

The High Court, having heard the parties and perused the record, found that the victim-prosecutrix, who is still a minor, had solemnized marriage with the bail petitioner, as was evident from her statement recorded by the Judicial Magistrate under Section 183 of the BNSS. The Court noted that the statement nowhere suggested that she had been sexually assaulted against her wishes; rather, it was out of her own volition and love for the bail petitioner that she had joined his company. It further emerged from the investigation and the victim’s statement that they had solemnized marriage and had been residing together in the bail petitioner’s house with his parents.

The victim-prosecutrix appeared before the Court along with her mother-in-law and confirmed the factum of her relationship and marriage with the bail petitioner. She stated that she had voluntarily and without any external pressure joined the company of the bail petitioner, had solemnized marriage with him, and had a child out of their wedlock. She expressed that she was living a happy married life and requested that the case lodged against her husband be quashed and that he be enlarged on bail.

The Court placed reliance on the judgment of the Hon’ble Supreme Court in K. Kirubakaran v. State of T.N., 2025 SCC OnLine SC 2307, wherein the Apex Court held that where a child is born as a result of love and not lust, and the victim expresses her desire to live a peaceful and stable family life, the incarceration of the husband would disrupt the family unit and cause irreparable hardship to the victim, the child, and the social fabric. The Supreme Court, in that case, observed that the law must yield to the cause of justice in such peculiar circumstances.

Applying the aforesaid principles to the facts, the Court noted that the victim-prosecutrix was two months short of attaining the age of 17 years and that her husband, the father of the child born from the union, was in custody. The Court observed that his continued detention would not only disrupt the family of the victim-prosecutrix but also cause further trauma to their child. Since the charge sheet had already been filed and nothing remained to be recovered from the petitioner, the Court found no justification for his continued incarceration, especially in view of the statement of the victim-prosecutrix.

Relying also on the settled principles of bail jurisprudence laid down in Sanjay Chandra v. CBI, (2012) 1 SCC 49; Manoranjana Sinh alias Gupta v. CBI, (2017) 5 SCC 218; Dataram Singh v. State of U.P., (2018) 3 SCC 22; and Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Court held that bail is not to be withheld as punishment and that the normal rule is “bail, not jail.”

Accordingly, the petition was allowed, and the petitioner was ordered to be enlarged on bail upon furnishing a personal bond of ₹50,000/- with one local surety in the like amount, to the satisfaction of the concerned Chief Judicial Magistrate/trial Court. The bail was made subject to conditions, including regular attendance before the trial court, non-tampering with evidence or witnesses, not making any inducement or threat to persons acquainted with the case, and not leaving India without prior permission of the Court.

For the Petitioner: Mr. Vijay Chaudhary, Advocate
For the Respondents: Mr. Rajan Kahol, Additional Advocate General; Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General

Case Title: Suneel Kumar v. State of Himachal Pradesh and Anr., Cr.MP(M) No. 396 of 2026

[Read Order]