Sanchayita Lahkar

The High Court of Gauhati, Single Bench of Justice Pranjal Das, invoking Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, quashed criminal proceedings brought against a man and his wife under the Prohibition of Child Marriage Act and the Protection of Children from Sexual Offences Act. The proceedings had originated from a complaint alleging that the marriage was solemnized when the girl was below the age of eighteen years. The Court found that the couple had since been living together in a settled matrimonial relationship and had a minor child, and that continuing the trial would be an exercise in futility, potentially harming the very individuals the law sought to protect.

The petitioners filed an application under Section 528 of the BNSS, 2023 seeking quashing of criminal proceedings pending before the Special Judge, South Salmara Mankachar. The case arose from an FIR lodged by the informant, then a VDP Secretary, alleging child marriage. Upon registration of the case, investigation was conducted and charge-sheet was filed against the petitioners under Sections 9/10/11 of the Prohibition of Child Marriage Act read with Sections 6/17 of the POCSO Act, 2012. Charges were framed and the matter had reached the stage of evidence.

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During the pendency of the proceedings, the alleged victim filed an affidavit stating that she had married petitioner no.1 when she was just below 18 years of age, that they were living peacefully as husband and wife, and that they had a child. She expressed no objection to quashing of the proceedings. The informant, through counsel, also conveyed no objection. The petitioners relied upon earlier decisions of the same Court where similar proceedings had been quashed in comparable circumstances.

The Court recorded that “This application under Section 528 of BNSS, 2023 has been filed by the petitioner… whereby he has prayed for quashing of the Special(P) Case…” and noted that the matter was pending trial after charges had been framed.

With respect to the affidavit of the alleged victim, the Court stated that “the alleged victim  has sworn an affidavit in which she stated that when she was just below the age of 18 years, she had love affair… and married him.” It further recorded that “she is now living peacefully with him as his wife and having one child” and that she had declared “if the proceeding continues, she and her child will suffer loss and that she has no objection to quashing of the said proceeding.”

On the legal position, the Court observed that “The law regarding quashing of criminal proceeding pursuant to settlement between the parties has crystallized through a catena of decisions rendered by the Hon’ble Supreme Court.” It also recorded that “as per the governing law, certain categories are excluded which includes heinous offence having great societal impact.”

Referring to the statutory provisions invoked, the Court stated that “the provision of Child Marriage Act has been given and the said law has been enacted to criminalize the social evil of marrying of girls before attaining their majority.” It further noted that “because of alleged minority of the girl at the time of the alleged incident, provision of POCSO has also been given which undoubtedly falls in the domain of serious offences.”

At the same time, the Court observed that “the objective reality that has emerged in the facts and circumstances of the instant case, also cannot be overlooked. The parties are married, living a peaceful conjugal life and they also have a minor child. In the said situation, allowing the trial to proceed might be an exercise in futility. Even otherwise, such a continuing prosecution could be detrimental to the interest of the child and the victim girl herself in the objective situation.” Consequently, it observed that “despite the provisions of Child Marriage and POCSO, it would be justified to exercise the power under Section 528 BNSS to allow the prayer of the petitioner who are interestingly both the accused and the victim jointly praying to quash the proceeding.”

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The Court ordered that “allowing this criminal petition, the entire proceeding of - Special(P) Case No.121/2024 (G.R No.110/2023), pending before the learned Special Judge, South Salmara Mankachar arising out of Mankachar P.S Case No. 61/2023, registered under Sections 9/10/11 of Prohibition of Child Marriage Act, R/W Section 6/17 of POCSO Act, 2012 shall stand quashed. The criminal petition stands allowed and disposed of on the aforesaid terms.”

Advocates Representing the Parties

For the Petitioners: Mr. M.R. Khandakar, Advocate

For the Respondents: Mr. D.P. Goswami, Learned Additional Public Prosecutor for the State of Assam; Mr. Robiul Hoque, Advocate for Respondent No.2

Case Title: Sapiyel Hoque Alias Sapial Hoque & Anr. v. The State of Assam & Anr.
Neutral Citation: 2026: GAU-AS:1276
Case Number: Crl.Pet./812/2025
Bench: Justice Pranjal Das