Conflict between POCSO & IPC: SC asks Ministry of Women and Child Development to respond

An interesting challenge came up before the Supreme Court today by way of a Public Interest Litigation filed by the NGO Bachpan Bachao Andolan. The petitioner has brought to the notice of the court the conflict in the provisions of Indian Penal Code (IPC) and Protection of Children from Sexual Offences (POCSO) Act, 2012..The POCSO Act criminalises sexual offences against any child, which is defined in Section 2(d) as a person below the age of eighteen years..Section 5 (n) of POCSO provides as under:.“(n) Whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child is said to commit aggravated penetrative sexual assault.”.Section 6 of the Act enunciates the punishment for aggravated penetrative sexual assault as rigorous imprisonment not less than 10 years to life imprisonment..The, IPC, on the other hand, by way of Exception 2 under S.375 (which deals with rape), exempts sexual intercourse by a man with his wife provided the wife is above 15 years of age..The petitioner has pointed out this anomaly. In a petition filed through advocate Jagjit Singh Chhabra, the petitioner has submitted that sexual intercourse with any child under 18 years, even if she is in a married relationship with a man, should be hit by POCSO. It is the petitioner’s contention that in a large number of cases, provisions of POCSO are not being applied and the benefit of a special act is not being afforded to children where they are in married relationship but over the age of fifteen..“In a large number of case, the Petitioner has observed that despite being a child by definition (under the age of 18), provisions of POCSO are not being applied and the benefit of a special act is not being afforded to children where they are in married relationship but over the age of fifteen. Therefore, a child‟s status as a child till she attains the age of 18, otherwise guaranteed by the State, is denied to her once she is forcefully or otherwise wed..This situation has arisen despite the fact that POCSO has been given overriding effect under Section 42A of the Act..The petitioner has, therefore, sought a declaration that POCSO would apply in such cases and the accused will not get the benefit under S. 375 of IPC..When the matter came up for hearing today, the Court said that it will not issue notice to the Centre at this stage. Instead, it has sent the file to the Ministry of Women and Child Development for its response..The Ministry has to respond with reasons within four months, and the petitioner has also been given the liberty to approach the court if it is not satisfied with the Ministry’s response..Image courtesy: Supreme Court of India