Redefine “child”, exclude consensual sex after the age of 16 from POCSO, Madras HC

The Madras High Court on Friday suggested that consensual sex, bodily contact or allied acts after the age of 16 be excluded from the ambit of Protection of Children from Sexual Offences Act (POCSO). To this end, Justice V Parthiban recommended that the definition of “child” under Section 2(d) of POCSO be amended and reduced to 16 instead of 18 years of age.

The Court made the suggestion on the premise that adolescents above the age of 16 years are capable of giving consent for sexual relations. To this effect, the Court observed,

“When the girl below 18 years is involved in a relationship with the teenage boy or little over the teenage, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction.

Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes.

But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so-called offender of sexual assault, warranting a severe imprisonment of 7/10 years.“

Presently, sexual relations with a person below the age of 18 would constitute a statutory sexual offence under the POCSO Act. The punishment for such an offence includes rigorous imprisonment. In this backdrop, the Court noted that the present law often leads to dire consequences for unsuspecting adolescent lovers.

“Sometimes it happens that such offences are slapped against teenagers, who fall victim of the application of the POCSO Act at a young age without understanding the implication of the severity of the enactment [POCSO]…

…Though under Section 2(d) of the Act, ‘Child’ is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigours of POCSO Act. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced 7 years or 10 years as minimum imprisonment, as the case may be.“

The Court was dealing with a case involving a runaway couple. A POCSO case was lodged by a man who alleged that the accused had kidnapped and committed penetrative sexual assault upon his 17-year old granddaughter. The accused in the case was the granddaughter’s co-student, who was above the age of 18 years.

The High Court set aside the charges after noting that the prosecution had failed to submit sufficient evidence to make out a case. Further, several witnesses turned hostile. The list of hostile witnesses included the granddaughter i.e. the alleged victim, who asserted that she had consented to go with the accused.

While the Court was dealing with the case however, it was disclosed by the State Commission for Protection of Child Rights, that majority of POCSO case emanated from sexual relationships between adolescent boys and girls. In view of these observations, Justice Parthiban went on to recommend,

“… on a profound consideration of the ground realities, the definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.”

However, to ensure that the impressionable age of teenagers is not taken advantage of by such decriminalisation, the Court also recommended that appropriate control measures be introduced in the POCSO Act itself.

“… such sexual assault [i.e. sex with a person between 16-18 years], if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teenage relationship after 16 years, from the cases of sexual assault on children below 16 years.

The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.”