The Madras High Court on Friday quashed a case involving a young couple stating that the Protection of Children from Sexual Offences Act (POCSO), 2012, was not intended to penalise adolescents or teenagers in romantic relationships.
“What came to be a law to protect and render justice to victims and survivors of child abuse can become a tool in the hands of certain sections of the society to abuse the process of law,” said justice N Anand Venkatesh in his order.
The teenage girl, a defacto complainant in the case, had sought for quashing the case against the respondent, a man in his early 20s. She had stated that they were in love and under pressure from her parents she had urged him to elope from their respective homes. They got married and consummate their marriage. The man was facing trial for offences under Section 366 of the Indian Penal Code, 1806, Section 6 of the POCSO Act and Section 9 of the Prohibition of the Child Marriage Act, 2006.
Child-rights activists have been advocating for the legislation to be altered so the focus doesn’t deviate from serious cases and it doesn’t criminalise consensual sexuality or romantic teenage relationships. “80 per cent of the POCSO cases booked in Tamil Nadu are elopement cases,” says Vidya Reddy founder of Tulir, an organisation working on prevention and healing of child sexual abuse in India.
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“The entire criminal justice system is getting clogged with these cases and the real cases are not getting the due attention they deserve. A majority of those booked are children between 16-18 (years of age). When we filed RTIs on acquittals, a majority of acquittals were 16-18 of age. Why are we wasting time with that group?”
The Madras High Court in its order also called for legislative changes observing that “an adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life… The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.”
While the court made legal references to orders in similar cases and of Supreme Court’s observations on quashing non-compoundable offences, it also drew on neurobiological studies, biosocial approach, behavioural sciences and first love.
But the court maintained that this would apply differently in each case, adding that the “Court is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, tend to reconcile, blaming themselves or convincing themselves that the element of consent was in fact present. Nor is this Court scientifically justifying the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.”
Tamil Nadu Child Rights Watch in 2018 wrote to the Ministry of Women and Child Development that POCSO which was framed to protect children shouldn’t punish them. “It’s been hard to come to a consensus on this legalisation,” said M Andrew Sesuraj, convenor of the organisation.
“While in principle it is good to revisit the age of consent and protect boys from being punished for sexual acts that aren’t criminal, our fear is that the changes shouldn’t be misused once again in serious cases of rape and victims compromising. We haven’t yet found a way to do this,” Sesuraj stated.