The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), defines a ‘child’ to mean ‘any person below the age of eighteen years’ and raised the age of consent from 16 years under the Indian Penal Code (IPC) to 18 years. The Act provides for a wide range of sexual offences including penetrative sexual assault, non-penetrative sexual assault (kissing, fondling), and non-contact based sexual acts such as sexual harassment. Unlike the IPC, which treats sexual intercourse by a man with his wife above the age of 15 years as an exception to rape, the POCSO Act does not permit any exception. In fact, penetrative sexual assault and non-penetrative sexual assault by a person who is related to a child through marriage constitutes an aggravated offence.

A plain reading of the Act suggests that:

• Any person (including a child) can be prosecuted for engaging in a sexual act with a child irrespective of whether the latter consented.
• A husband/wife can be prosecuted for engaging in a sexual act with his/her spouse below the age of eighteen years.
• The Act does not recognise consensual sexual acts among children or between a child and an adult.

Before the Act was passed, debates took place around the need to acknowledge and decriminalise sexual behaviour of adolescents between 12-18 years[1]. The Act, however, adopted a protectionist approach under the assumption that a uniform age of consent would be in accordance with the UN Convention on the Rights of the Child, 1989. The notion of respect for the autonomy and evolving capacities of children along with the need to ensure that children/adolescents engaging in sexual exploration are not treated as juveniles in conflict with law was rejected. In effect, the Act infringes upon the right to dignity and bodily integrity, freedom of expression, right to life, and the right to privacy of adolescents engaging in consensual sexual behaviour.

In the 19 months since the POCSO Act has come into force [2], Special Courts have been confounded by ‘love cases’. Data on similar cases involving children who have committed such an offence which come before the Juvenile Justice Boards is not easily available.

In State v. Suman Dass [3], a 15-year-old girl left home and married a 22-year-old man. Her mother filed a complaint alleging that the man had kidnapped and sexually assaulted her. In court, the girl admitted to having gone willingly and to having sexual intercourse. Judge Dharmesh Sharma was of the view that a strict interpretation of the POCSO Act ‘would mean that the human body of every individual under 18 years of age is the property of State and no individual below 18 years of age can be allowed to have the pleasures associated with once [sic] body.’ He reasoned that:

‘The words ‘penetrative sexual assault’ used in Section 3 of the POCSO Act goes to suggest that where physical relationship or sexual intercourse had taken place with consent of a girl child which is not derived by coercion or not in the nature of an assault or use of criminal force, or which is not resulting in exploitation, or where the consent is not obtained for unlawful purpose, no offence within the ambit of Section 3 of POCSO Act can be said to have been committed.’

He cited the acceptance of the marriage by the mother and that sending the man to prison ‘would not be conductive to mental, psychological, physical health’ of the girl, while acquitting the accused. It is not clear however, whether or not the voluntary nature of the relationship was determined. In another case where a girl between 14-16 years of age ‘willingly’ married an older man [4], Judge Dharmesh Sharma stated that ‘in case of critical age between 16 years to 18 years, Section 4 of the POCSO Act has to be interpreted distinguishing between an act which is per se criminal for being in the nature of coercion, fear, inducement or exploitation committed upon a child; from an act which would otherwise criminalize a person for having done something which is without any malice, ill will or ulterior motives.’ While his intention is appreciable, he failed to appreciate the significant age difference and power imbalance between the couple that could potentially undermine the voluntary nature of the relationship. The reasoning of the judge also betrays an incomplete understanding of the nature of child sexual abuse. The technique of ‘grooming’ is routinely used by abusers to gain trust and access to children and entails psychological manipulation. It is not essential therefore that sexual abuse always be accompanied by force, coercion, assault, or physical violence.

In State v. Aas Mohammad [5], a 14-year-old girl was in a sexual relationship with her landlord. A complaint was filed by the mother on discovering that the girl was six months pregnant. In court, the girl admitted that the matter was reported only because the man had refused to marry her. During the proceedings, the accused offered to marry the girl, deposit a sum of Rs 30,000 in her name, and provide shelter to her mother. The couple got married when he was released on bail.  The judge ensured compliance with the undertaking and acquitted the accused as the girl and her mother retracted their statements.

Did the above cases end primarily in acquittal because the parties were married?

In State v Iskhar Ahmed [6], Judge Shalini Nagpal, Chandigarh held that  ‘[h]aving a love affair with the prosecutrix and having conversations with her would not give a license to the accused to commit rape on her person or even to have sexual intercourse with her consent, as consent of the child to penetrative sexual assault is immaterial.’ This was a case in which the couple was not married but was in a relationship against the wishes of their parents.

The above rulings give rise to conflicting questions – can an adolescent’s right to bodily integrity, privacy, and life be disregarded if she is not married? Will marriage disentitle a girl from being protected from sexual offences? Is the marital rape exception being implicitly applied by the judges in POCSO cases? Are judges providing the accused an option to evade conviction by sanctioning their offer to marry the victim? Should not the age difference, voluntary nature of the relationship, and its psychological and physical impact on the child be considered? What would be in the ‘best interest of the child’ in such cases?

Another thorny issue that has received scant attention is whether couples below 18 years of age should be treated as juveniles in conflict with law. The National Commission for Protection of Child Right (NCPCR) had stressed on the need for the law to recognise consensual sexual exploration among adolescents by decriminalising it when it is between:

• Children above 12 years when the age-gap was less than two years and
• Children above 14 years when the age-gap was less than three years.

By not recognising this, the POCSO Act has conflated child sexuality with child sexual abuse. It has failed to consider nuances of age, age difference, and child development. In Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development [7], the Constitutional Court of South Africa confirmed that provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which criminalised consensual sexual conduct of adolescents above 12 years and below 16 years, were unconstitutional. The imposition of criminal liability on adolescents engaging in consensual sexual conduct was opposed to the right to dignity, right to privacy, and contrary to the best-interests principle. It observed that the provisions ‘… criminalise a wide range of consensual sexual conduct between children: the categories of prohibited activity are so broad that they include much of what constitutes activity undertaken in the course of adolescents’ normal development.…the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades and inflicts a state of disgrace on adolescents.’

Should we not challenge the provisions of the POCSO Act for having effectively criminalised all forms of consensual sexual conduct among children without any regard for their autonomy and fundamental rights? Should the law not be amended to ensure that age-gaps are considered? Also, judicial blessings for marriages between perpetrators and their child victims, not only sanctions marital violence, but child marriage – both of which are illegal, and requires to be prohibited.

This article has benefited from comments by Arlene Manoharan and Advocate Geeta Sajjanashetty.

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