CHENNAI/NEW DELHI: Observing that the relationship between a girl under 18 years of age and a teenage boy or little over the teenage years cannot be construed as “alien” or “unnatural”, the Madras High Court suggested exclusion of consensual sex after 16 years of age from the purview of POCSO Act.
Justice V Pathiban gave the suggestion on Friday during the hearing of a petition by Sabari who challenged his conviction and 10-year sentence by a Mahila court in Namakkal under the Protection of Children from Sexual Offences (POCSO) Act. The petitioner was accused of kidnapping and sexually assaulting a 17-year old girl.
Suggesting amendments to the Act, the judge said, “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 and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself…”
“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,” he said.
Justice Pathiban also directed the State Commission for Protection of Child Rights (SCPCRs), Commissioner of Social Defense, Department of Social Welfare and Noon Meal Programme to place the matter before competent authority and take steps to explore whether the suggestions are acceptable to all stakeholders.
Perusing various reports of the DGP, SCPCRs among others, he said under Section 2(d) of the Act, ‘child’ is defined as a person below 18 years of age and in case of any love affair between a girl and a boy, where the girl happens to be 16 or 17 years old, the relationship invariably assumes penal character by subjecting the boy to the rigours of the law. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced 7 or 10 years as minimum imprisonment, as the case may be, he noted. “… Such a relationship cannot be construed as an
unnatural one or alien to between relationships of opposite sexes,” the judge added.
Earlier the court acquitted the accused on the victim’s statement, saying that she had consented to go with Sabari. Above-16 sex not unnatural …
Suggestion hailed
(Contd from P-1) Senior Advocate Vikas Pahwa expressed his agreement with the observation of the Madras High Court.
He said: “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.”
Alok P Kumar, a senior resident fellow at Vidhi Centre for Legal Policy, said that “the court’s suggestion is well intentioned 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.
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. (Agencies)
