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'POCSO Should Protect Minors From Sexual Abuse, Not Criminalise Consensual Relationships': Delhi HC

The court's remarks came while granting bail to a man who had married his 17-year-old friend after she had been married off against her will by her parents

New Delhi: The Delhi high court, granting bail to an individual arrested on charges under the Protection of Children from Sexual Offences (POCSO) Act, opined that the intention behind the Act is to prevent sexual abuse against children and not to criminalise the consensual romantic relationships of young adults.

It, however, cautioned that the nature of the relationship has to be seen from facts and circumstances of each case as the survivor in some cases may face pressure to settle.

The court’s observation came while granting bail to a man who married his friend, a 17-year-old woman at the time, and was subsequently apprehended under the POCSO Act.

Case background

In June last year, when the woman was 17 years old, her family reportedly married her off to a man against her wishes. In October that year, she approached the bail applicant, a friend of hers, at his home. Together, they eloped to Punjab and got married, following which the woman’s father filed a first information report (FIR) against the applicant.

The applicant was subsequently booked under Sections 6 (Aggravated penetrative sexual assault) and 17 (Abetment) of the POCSO Act and Indian Penal Code (IPC) Sections 363 (Kidnapping), 366 (Kidnapping, abducting or inducing woman to compel her marriage) and 376 (Rape).

Thereafter, the applicant was remanded to judicial custody on December 31 last year and has remained there since.

According to a report in Live Law, the applicant’s counsel told the Delhi high court that the woman had approached the Punjab and Haryana high court in the past seeking protection from her parents. 

In his order, Justice Jasmeet Singh, presiding over the case, said, “The order has been filed which shows that the Ms. ‘A’ i.e., the daughter of the complainant had approached the High Court of Punjab and Haryana stating that she had married the applicant out of her own will and that her parents were threatening to cause harm to her and her husband. As a result of which, the High Court of Punjab and Haryana was pleased to direct the respondent Police to provide adequate and appropriate protection to Ms. ‘A’ and her husband.”

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On October 20 this year, the woman interacted with the Justice Singh in chambers and told him that she did not want to stay with the man her parents had married her off to; that she married the applicant without any coercion and of her own will; and that she still wants to stay with the applicant.

“Thus, this is not a case where the girl was coerced into the relationship with the boy. In fact, Ms. ‘A’, herself went to the applicant’s house and asked him to marry her. The statement of the victim makes it clear that this is a romantic relationship between the two and that the sexual act involved between them was consensual,” Justice Singh said in his order.

The high court judge, however, clarified that minors (as the woman was at the time) cannot provide legal consent, but noted that the consensual nature of the relationship between the woman and the applicant should be considered when considering his bail.

“Although the victim is minor and hence her consent does not have any legal bearing, I am of the opinion that the factum of a consensual relationship borne out of love should be of consideration while granting bail. To ignore the statement of the victim and let the accused suffer behind jail, in the present case, would otherwise amount to perversity of justice,” the order read.

Justice Singh also clarified his opinion on the intention of the POCSO Act:

“In my opinion, the intention of POCSO was to protect children below the age of 18 years from sexual exploitation. It was never meant to criminalise consensual romantic relationships between young adults.”

The judge then cautioned that the facts of each individual case still must be considered.

“However, this has to be seen from the facts and circumstances of each case. There might be cases where the survivor of sexual offence, may under pressure or trauma be forced to settle,” the judge added.

The court observed that a consensual relationship borne out of love should be of consideration while granting bail, and in the present case, it would be a “perversity of justice” to let the accused suffer in prison.

It directed that the accused be released on bail on a personal bond and a surety bond of Rs 10,000 each.

The court also asked the accused to join the investigation, surrender his passport and not indulge in any criminal activity.

Karnataka HC’s direction

The Delhi high court order comes days after the Karnataka high court directed the Law Commission of India to reconsider the age of consent under POCSO.

In a judgment passed on November 5, a bench of Justices Suraj Govindaraj and G. Basavaraja said, “Having come across several cases relating to minor girls above 16 years having fallen in love and eloped and in the meantime, having had sexual intercourse with the boy, we are of the considered opinion that the Law Commission of India will have to rethink on the age criteria, so as to take into consideration the ground realities.”

(With PTI inputs)