Acts of mutual love between minor boyfriend and girlfriend not sexual assault under POCSO Act: Meghalaya High Court

The Meghalaya High Court recently held that acts of mutual love and affection between a young couple will not amount to "sexual assault" under the Protection of Children Against Sexual Offences Act (POCSO Act) [Silvestar Khonglah v. State of Meghalaya]..Justice W Diengdoh held that though consent of a minor is immaterial as far as prosecution for an alleged offence of sexual assault is concerned,"...but considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them.".The Court was hearing a mutual petition filed by the accused minor and the mother of his girlfriend to quash the case.The minor girl resided at a school with her teacher. The mother had filed the complaint after her minor daughter was discovered missing from her room by the school teacher. On finding that the daughter was having physical relations with the accused, who was her boyfriend, the police registered a First Information Report (FIR) under Section 5(l)/6 of the POCSO Act (aggravated penetrative sexual assault) against the boy. As a result, he was arrested and spent ten months in jail before getting bail..In her testimony made before the magistrate, the minor girl acknowledged that she had physical relations with the accused and that her relationship with him was consensual and of her own free will.However, the Investigating Officer filed a chargesheet against the accused on finding prima facie evidence against him. The case went to trial before the Special Judge (POCSO), Shillong when the petitioners moved the High Court on a mutual understanding, to quash the case against the accused..The Court acknowledged that legislators had made provisions of the POCSO Act stringent in order to address the deep emotional scars and the profound effect that acts of sexual assault can have on minor victims."What is even prevalent now is, what is know as ‘good touch’ and ‘bad touch’ where even a semblance of sexual overtone in the way an alleged perpetrator touches a child victim will make him liable for prosecution under the relevant provisions of the law," the order stated.Nevertheless, in cases like these, where a boyfriend and girlfriend indulge in mutual acts of love, the POCSO Act could not be invoked, the Court said..Therefore, in the interests of justice, the Court quashed the case against the accused minor and freed him from any liability in the criminal case..The petitioners were represented by Advocate K Gautam. Additional Public Prosecutors S Sengupta and H Kharmih represented the State..[Read Order]