Cohabitation With Adult Husband To Invite POCSO: Allahabad High Court Directs Minor Mother To Stay In Shelter Home Till She Turns 18

A Bench of Justice JJ Munir and Justice Sanjiv Kumar passed the order on a habeas plea filed on behalf of the minor girl and her child as it refused to allow her to live with adult husband. The Court observed thus:

"Permitting a minor to cohabit with an adult would make the husband liable for offences punishable under the POCSO Act as well".

The plea, supported by the girl's mother-in-law, sought her release from the Rajkeeya Bal Grih (Balika)/Children's home in Kanpur Nagar, where she was lodged by the Child Welfare Committee (CWC) after being found living with her husband.

Briefly put, 'A' (the minor girl) got married to one Mukesh on July 3, 2025 and gave birth to a son eleven days later, on July 14, 2025. However, as per her High School marksheet, her date of birth is October 5, 2008, which means she was three months short of 17 at the time of marriage.

Following this, the minor's father lodged an FIR under Section 137(2) BNS [Kidnapping], pursuant to which, her 'husband' (Mukesh) was arrested on July 22, 2025. On the same day, the girl was also detained and produced before the CWC, where she stated that she wished to go back to her husband's house and refused to live with her parents as she claimed 'peril to her life'.

Taking note of her statements and reluctance to live with her parents, the CWC ordered that she be lodged in the Children's home in Kanpur Nagar.

Counsel for the petitioner relied on the Supreme Court's ruling in KP Thimmappa Gowda v. State of Karnataka (2011), arguing that the girl's consent made the relationship lawful. However, the Court noted that the law regarding the age of consent has undergone a “sea change” since that decision.

The Court noted that the age of consent under the Clause sixthly of Section 375 IPC, when K.P. Thimmappa Gowda was decided, was 16 years. However, in 2013, the age was changed to 18 years, and under the BNS, it remains 18.

The Bench emphasized that in the present matter, the marriage took place after the B.N.S. came into force which provides that any sexual act with a person under 18 years of age, with or without consent, punishable as rape under Section 63(vi).

Against this backdrop, the Bench rejected the plea to hand over the minor to her mother-in-law's custody as it observed that “there is no assurance that there would be no carnal relations with her major husband as soon as he is set at liberty”, and that the law could not ensure their separation.

On the other hand, since 'A' refused to return to her parents' home, the Court said that her continued stay at the Rajkeeya Bal Grih (Balika) was the only lawful option.

However, acknowledging the 'human angle' of the case, the Court noted that the girl, being a minor mother with a two-month-old infant, could not care for the child independently.

Thus, while rejecting a request to allow the mother-in-law to regularly bring food or other items to the girl, the Court permitted her visitation in accordance with the shelter home's rules, stating:

"…her mother-in-law…shall be at liberty to visit her (during her stay at the children's home) and take care of her emotional and other needs, as well as that of the first petitioner's child..but shall not be entitled to bring them any food or eatables. These visitation shall be regular and in accordance with the rules of the Rajkeeya Bal Grih (Balika)", the Court further provided.

Furthermore, expressing concern over allegations of 'deplorable' conditions in the shelter home, the Bench directed that both the girl and her child be provided proper healthcare.

The Court ordered thus:

• The Incharge of the Children's home should ensure that the minor girl and her child under conditions that are conducive to her good health and that of her child and the well being of both.
• A doctor would attend on them regularly at least twice a month or whenever required by the first petitioner.
• There shall also be a paediatrician to take care of the child, who shall be available on call.
• The Chief Medical Officer (CMO), Kanpur Nagar, shall ensure compliance.

Additionally, the Court directed the District Judge, Kanpur Dehat, to assign a senior lady judicial officer to visit the girl and her child at least twice a month to ensure the execution of the order.

The HC added that the girl would be at liberty on October 5, 2026, when she attains the age of 18.

Advocates Shakti Shanker Tiwari and Subhash Chandra Tiwari appeared for the petitioners