POCSO Act: Bombay High Court says criminalization of romantic relations has burdened courts; reverses conviction for sex with 17-year-old

The Bombay High Court recently held that the age of consent for sex under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences Act (POCSO Act) should be re-examined since a large number of cases coming before courts involve minor girls below 18 years who have had consensual sex in romantic relationships. [XYZ v. State of Maharashtra & Anr].The Court pointed out that because of the POCSO Act, a boy aged 20 years could be held guilty of rape for having consensual sex with a girl aged 17 years 364 days. Such cases were overburdening the courts and justice system, the High Court remarked.“The criminalization of romantic relationship has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system and ultimately when the victim turns hostile by not supporting the charge against the accused, in the wake of the romantic relationship she shared with him, it can only result in an acquittal”, the 31-page order said. .The Court observed that while children are entitled to be protected from sexual violence, they should also be free to exercise their choices without risking exposure to harm and danger. "The penal approach towards adolescents’ sexuality has impacted their life to a barrier-free access to sexual and reproductive health services," the Court said. .The Court further noted that in several cases, the man is convicted under the POCSO Act, despite a clear stand being taken by the girl that the sexual relations between them were consensual. .These observations were made in an order acquitting a man who was convicted by the trial court under the POCSO Act for consensual sex with a girl aged 17.5 years. A man cannot be convicted of rape for a clearly consensual act, merely because the alleged victim has not attained the age of maturity (18 years) and because the sexual act is punishable by law for that sole reason, the Court underscored while reversing the trial court conviction.“The minor is not considered to be capable enough to give valid consent in the eyes of law for entering into consensual sex. In the cases of the teenagers, who fall for attraction of the opposite sex and enter into a sexual relationship, only one has to take the consequences, though the other had also indulged into the same act,” the Court pointed out while referring to the current legal position. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only within the confines of marriage, the Court said. The judge added that this important aspect should be taken note of not only by society but also by the judicial system.Justice Bharati Dangre further noted that the present case was peculiar, as evidence showed a clear case for consensual sex since the minor had consistently maintained such a stand throughout her deposition and examination.The order convicting the appellant (accused man) in February 2019 was, therefore, set aside and he was directed to be released forthwith..Pertinently, the judge suggested that it was time to re-examine the provisions that convict individuals for having sexual indulgences with minors without considering whether the alleged victim was capable of being an equal participant in the act. “A provision which does not take into consideration our societal realities and proceed on an assumption, that every sexual indulgence with a minor, irrespective of whether she was capable of being an equal participant in the act, has definitely created a situation, resulting in acquittal of the accused in cases of consensual sexual relationship, where the gap in the age of accused and that of victim is small”, the High Court said. .The judge also referred to recent remarks made by the Madhya Pradesh High Court, which had urged the Central government to reduce the age of consent for sex from the current 18 years to 16 years in order to redress the "injustice going on with adolescent boys" who enter into consensual sexual relationships. .The Court further highlighted the age of consent prevalent in various other countries is less than the age of consent in India. The Court noted that the present age of consent in India (18 years) was probably one of the highest in the world.The majority of countries have set their age of consent at 14-16 years, the Court observed. "Children in the age group of 14 are considered capable of giving consent to sex in countries like Germany, Italy, Portugal, Hungary etc. In London and Wales, the age of consent is 16. Among Asian countries, Japan has set the age of consent as 13. In Bangladesh, Section 9(1) of the Women and Child Abuse Prevention Act, 2000 defines ‘rape’ as sexual intercourse with a woman, with or without her consent, when she is below 16 years of age. Similarly, in Sri Lanka, the age of consent is 16," Court noted..The Court, therefore, asked the parliament to deliberate on this issue.“It is necessary that our country will have to look around and observe all that is happening around the world in this regard, but one thing is sure that in this whole scenario, if a young boy is castigated for being guilty of committing the rape on a minor girl, merely because she is below 18, but an equal participant in the act, he would suffer a severe dent, which he will have to carry lifelong,” Justice Dangre said..[Read Judgment]