Madras HC suggestion on consensual sex between minors hailed

By Amiya Kumar Kushwaha

Chennai/New Delhi, April 27 (IANS) The Madras High Court's suggestion to exclude consensual sex with girls above 16 from rigours of the Protection of Children from Sexual Offences (POCSO) Act has been welcomed by legal experts.

The Madras High Court on Friday suggested that consensual sex, physical contact or allied acts after the age of 16 be excluded from the ambit of POCSO Act and the definition of "child" under Section 2(d) of the Act be amended and reduced to 16 instead of 18 years.

"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," Justice V. Parthiban said.

As per Section 2(d) of the POCSO Act, "child" means any person below the age of 18 years.

Senior Advocate Vikas Pahwa expressed his agreement with the observation of the Madras High Court on the need to amend the definition of "child" and reducing the age of consent from 18 to 16 years.

But, he said: "However, this will also require a corresponding change in the Indian Penal Code, where the definition of 'kidnapping' would also require the change from 18 to 16 years."

"Considering the innovation in digital technology, the children are exposed to so much of information that they get matured much earlier and thus are in a position to give consent for any relationship even at the age of 16," Advocate Pahwa said.

He also opined that this will also reduce significant number of criminal cases pending in various courts, where the provisions of the Act are grossly misused as even when a girl in the intermediate age of 16-18 gives consent, it is treated as invalid in view of the provisions of the POCSO Act.

Alok P. Kumar, a senior resident fellow at Vidhi Centre for Legal Policy, said that "the court's suggestion to amend POCSO is well intentioned idea and deserves serious consideration".

"The court has raised a very valid issue as the present legal framework of POCSO and sexual assault is being used to prevent inter-caste marriages and consensual relationships between young people," Kumar said.

"The court has rightly expressed anguish about the judicial system being misused to cover up elopement and consensual relationships rather than deal with crimes against children. The court's suggestion to amend POCSO is an idea with a good intent and deserves serious consideration."

Welcoming the suggestion, Senior Advocate Geeta Luthra said that these days adolescents above the age of 16 years are capable of taking a call as far as physical contact is concerned.

"Study should be conducted to redefine the age limit as people these days are maturing much earlier. Sometimes, some innocents are not treated as innocent due to certain legal provisions," Luthra said.

In its Friday's ruling, the Madras High Court said: "...such sexual assault [i.e. sex with a person between 16-18 years], if it is so defined can be tried under more liberal provisions, 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 court also suggested some measures including "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".

The court recommendation came while allowing a criminal appeal filed by Sabari alias Sabarinathan challenging his conviction in a minor's kidnapping and rape case.

The court acquitted him on the victim's statement, saying that she had consented to go with Sabari.

It was alleged that Sabari was in relationship with a minor girl and had kidnapped her on June 28, 2014 from the lawful custody of her grandparents and thereafter committed sexual assault on her on several occasions.

Sabari was convicted by a Fast Track Mahila Court in Namakkal, Tamil Nadu, in June 2018 and was sentenced to 10 years' rigorous imprisonment under the POCSO Act.

The high court observed that the prosecution had failed to prove its case against Sabari as several witnesses turned hostile including the victim.

The court said: "It was only a case of presumption on the part of the relatives of the victim girl that the accused could have kidnapped her and committed sexual assault on her."

The court in its ruling also observed that when the girl below 18 years is involved in a relationship with a teenage boy or a little over the teenage, it is always a question mark as to how such relationship could be defined since "such relationship would be the result of mutual innocence and biological attraction".

The court noted that such relationship cannot be construed as an unnatural one or alien to relationship between opposite sexes.

"But in such cases where the age of the girl is below 18 years, even though she is 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," the court said.

The court also emphasised on the need to create awareness regarding the POCSO law.

(Amiya Kumar Kushwaha can be reached at amiya.k@ians.in)