New Delhi: Facing legal complication arising out of a law meant to protect children, a woman has approached the Delhi High Court with a request to allow her teenage daughter to terminate her pregnancy which arose from a consensual relationship.
Hospitals had refused to carry out the medical procedure as the woman did not want to inform the police, as mandated under The Protection of Children from Sexual Offences (POCSO) Amendment Act, 2019.
Section 19 of POCSO makes it compulsory for anyone, including authorities such as hospitals, to inform the police in case they come across any incident of alleged sexual assault on a minor, or those below 18 years, irrespective of consent.
As per the law, consent of a minor is immaterial and the police is bound to register an FIR against the “accused”.
But in the case before the Delhi High Court, the mother did not want the police to be informed about her daughter’s 17-week pregnancy since it was out of a consensual relationship and because she wants to avoid the “ensuing social stigma, ostracisation and harassment” attached to filing of criminal cases in such matters.
The petitioner informed the high court that although the Medical Termination of Pregnancy (MTP) Act — the law regulating abortion in India — allows her daughter to undergo abortion, hospitals are not ready to carry out the procedure until the matter is reported to the police.
During the court hearing Tuesday, Additional Solicitor General Aishwarya Bhati submitted that the law needs to be followed and an FIR must be registered. Bhati, who was asked to assist the court in the matter, however, assured the HC that the FIR would be kept in a sealed cover and will not be revealed to anyone.
The petition, which also challenges the constitutional validity of Section 19, has raised a pertinent question over applicability of the POCSO on teenagers engaged in a consensual relationship, particularly those in the age-bracket of 16 to 18 years. Section 19, the woman has argued, violates the right to privacy of young girls.
The petition brings to the fore repeated concerns highlighted by the Supreme Court and several high courts on how harshly the law treats teenage couples, as well as threatens to disrupt marriages in tribal communities where the practice of marrying adolescent girls is still prevalent.
‘Great difficulty in applying POCSO’
Earlier this month, the Supreme Court — while hearing an appeal against a Madras HC order that POCSO will be applicable even in cases of a consensual relationship with a minor — pointed to the implementation challenges of the act. The court was hearing an appeal filed by a man who was convicted for having a relationship with a girl aged 17 years and 10 months.
A bench of justices Indira Banerjee and M.M. Sundresh observed that the courts have come across many cases related to teenage marriages, which is encouraged by local and tribal customs. In such matters, courts face great difficulty in applying POCSO, it observed.
And, when the girl in such a relationship gets pregnant and is taken to the hospital for diagnosis, such cases get reported under POCSO, resulting in the husband getting arrested. There is no difficulty in cases where the victims themselves file the complaint, but when it is filed by someone else, it raises problems, the bench noted.
Last month, the Meghalaya High Court had quashed an FIR under the POCSO observing that it would be an injustice to separate a “well-knitted” family unit. It consistently pointed out the dilemma raised by cases of such nature and quashed them.
“In the context of consensual or voluntary sexual intercourse, and more so if the girl is underage while the boy would be above the age of 18 and also if it is confirmed that they are living as husband and wife, and the wife perhaps having given birth to a child, the issue becomes more complex (sic),” the Meghalaya HC said in one of the cases.
The Kerala High Court, too, has lamented the lack of a distinction between consensual sexual activity and child abuse. “Unfortunately, POSCO Act does not distinguish between rape and consensual sexual interactions,” it said.
The mandatory reporting cases has led to high courts often exercising extraordinary powers to quash cases to protect the family and the child.
The POCSO was not intended to prosecute teen romance, said the Allahabad High Court earlier this year. The Act, however, continues to prosecute all such cases notwithstanding whether they are consensual or if the girl is nearing adulthood.
‘Exclude consensual sex between 16 & 18 years’
The Madras High Court was one of the first high courts to have suggested that consensual sex, bodily contact or allied acts after 16 should be excluded from the ambit of the POCSO.
In a 2019 judgment, the HC said that “when a girl little below 18 is involved in a relationship with a teenage boy or a little over teenage (sic)”, it is “difficult” to define such a relationship.
However, even in such consensual cases, the rigours of the POCSO Act apply, warranting severe punishment.
“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 (sic),” the court said.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.
(Edited by Zinnia Ray Chaudhuri)