New Delhi: Hearing the case of a man who had challenged his conviction under the POCSO Act claiming he had a “consensual relationship” with a minor girl whom he later refused to marry, the Madras High Court Monday observed that the Protection of Children from Sexual Offences Act does not make an exception for a romantic “consensual” relationship with a minor.
The two-judge bench of Justices N. Anand Venkatesh and K.K. Ramakrishnan said: “A child below 18 years is incapable of giving consent in the eyes of law and therefore, even in a case where there is consensual romantic relationship with a child, it will attract the provisions of the Act and the concerned person has to face the consequences.”
The man, aged 19 at the time of the offence, according to the court order, had been convicted and sentenced to life by a trial court under the POCSO Act, SC/ST Act, and other provisions.
The HC, however, modified the life sentence to 10 years of imprisonment and fine of Rs 5,000, noting that the prior sentence was “harsh” in light of the couple’s long acquaintance and “the adverse impact of hormonal changes at that age”. It also set aside the man’s conviction under the SC/ST Act and for abetment to suicide.
Before the court, the accused had argued that there was no coercion, threat or force in his relationship with the minor and that the 2012 Act “is not meant for punishing teenage persons who had a relationship with a proper understanding”.
On the other hand, the minor, who had not yet completed 18 years at the time of the incident, argued that the accused had promised to marry her and, believing him, she agreed to have a physical relationship with him. When she got pregnant and requested him for marriage, the accused refused, cited that she belonged to the Scheduled Caste community and told her to “go and die”. She subsequently consumed rat poison in an attempt to take her own life, according to her family, but was hospitalised and delivered a baby during treatment.
The court, however, made it clear that simply because the accused was in a “consensual” and romantic relationship with the minor, he could not be absolved from persecution under the POCSO Act.
The judgement appears to be a significant departure from other court orders involving POCSO Act cases. Although the Act does not recognise a minor’s consent as defence, several courts have considered the consensual nature of near-majority adolescent relationships when adjudicating bail or evaluating evidence, or awarding sentence in such cases.
Speaking to ThePrint, Swagata Raha, a legal researcher who has studied the working of special courts under the POCSO Act in Delhi, Assam and Maharashtra while working with the Centre for Child and the Law, NLSIU, Bengaluru, said that in the present case “the court noted that consent has no place under the POCSO Act, considered the ‘natural attraction’ between the couple and ruled that charges under the SC/ST Act were not made out”.
The court also observed that the “impact of hormonal changes” could not be ruled out as it modified the sentence for the accused from life imprisonment to 10 years, Raha added.
Afrin Khan, Legal Researcher at Christ University, Bengaluru, also said that although at first glance, the HC’s ruling appeared to be a deviation from the Supreme Court’s observation on decriminalising consensual adolescent relationships, courts have otherwise also addressed the power imbalance and misuse of the position of trust or authority by the accused over a minor.
“Not all cases can be dubbed as ‘Romeo-Juliet’ and thereby quashed,” Khan told ThePrint while adding that if the facts of the case indicate undue influence or misuse of authority, the prosecution is justified.
Khan also pointed out that the “romantic” category of cases must not be seen from a straight-jacket formula. “Instead, a case-by-case approach, which is fair and protective towards the victim, will go a long way,” she said.
Weighing in on the legal conundrum in POCSO Act cases, Delhi-based criminal lawyer Yash Chaturvedi said the Madras High Court was legally correct in upholding the man’s conviction.
“Under Indian penal laws, whether the IPC, BNS or the POCSO Act, the age of consent is strictly 18, leaving no statutory escape for an adult accused, even in close-age scenarios. However, prosecuting consensual teenage relationships under the exact same harsh provisions meant for predatory, non-consensual offenders is problematic,” he said.
Although courts cannot rewrite legislation, they can and should responsibly interpret or read down sentencing provisions to ensure that adolescent romance is not unfairly equated with egregious sexual assault, the lawyer added.
Also Read: Child protection to ‘moral policing’ tool: How POCSO Act is leaving courts conflicted
A look at the case
In the present case, the prosecution said the minor girl belonged to the SC community and was acquainted with the accused since Class 8. She was studying in Class 11 when the accused proposed to her, while confessing his love in the process.
The court was also informed by the prosecution that in August 2019, the accused and the victim spoke over the phone, and he convinced her to come to a place near her house.
While promising marriage, the accused repeatedly had sexual intercourse with the minor, leading to pregnancy. However, when she asked him to marry her, he denied responsibility for the pregnancy and refused, citing her caste background and also “asked her to go and die” in May 2020, when she was at an advanced stage of pregnancy, the court order states, citing the prosecution’s case.
A day later, the girl consumed rat poison, following which she was admitted to a government hospital and delivered a child. After this, a complaint was filed by the girl’s mother, and a trial court in 2023 convicted the accused for penetrative sexual assault of the minor. In doing so, the court said he prosecution had established its case beyond reasonable doubt.
The accused subsequently moved the Madras High Court.
Although the HC upheld the man’s conviction, it modified his sentence from life imprisonment to 10 years’ imprisonment, as outlined under the POCSO Act, taking note of the fact that the minor and her parents firmly stood against the accused.
Regarding charges against the accused under Section 306 of the Indian Penal Code (abetment to suicide), the bench observed: “As per the case of the prosecution, the accused person is said to have told the victim girl to go and die. That statement made by the accused person by itself will not constitute instigation within the meaning of Sections 107 and 306 of IPC.”
It noted that “there is also doubt as to whether the victim girl actually consumed poison”.
The judges further observed that a DNA analysis had conclusively proved that the appellant was the biological father of the child. “Exhibit P20, which is the forensic analysis report, makes it abundantly clear that the accused is the father of the child,” the court noted, while upholding conviction under the POCSO Act.
(Edited by Nida Fatima Siddiqui)
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