POCSO Act| Supreme Court to Consider If Women Can Be Tried for ‘Penetrative Sexual Assault’

A bench of Justices M.M. Sundresh and Satish Chandra Sharma issued notice to the Karnataka government on a special leave petition filed by the woman, who is aggrieved by the High Court’s order dated August 18, 2025.

Senior advocate Sidharth Luthra, appearing for the petitioner, argued that Sections 3(1)(a) to 3(1)(c) of the Protection of Children from Sexual Offences Act, 2012 being gender specific, have no application to the case of the petitioner.

Upon hearing the submissions, the Supreme Court stayed further proceedings before the Bengaluru court.

According to the complaint, the woman, then aged 48, allegedly forced a 13-year-old boy from her neighbourhood to have sexual intercourse with her twice during May–June 2020. It was alleged that she would call the boy to her home under the pretext of helping her manage her Instagram account.

In August 2020, the complainant and his family moved to Dubai for better career and educational opportunities. In February 2024, the boy allegedly revealed the incident to his parents after they noticed signs of psychological distress. The family returned to India in June 2024 and lodged a complaint at the HAL Police Station in Bengaluru.

In her plea before the Supreme Court, the woman contended that the High Court had made interpretations “contrary to law” while reading Sections 3 and 5 of the POCSO Act, which form the foundation of offences under Sections 4 and 6.

The High Court had held that “Although certain provisions may employ gendered pronouns, the preamble and purpose of the Act render such usage inclusive. Therefore, it is inclusive of both male and female".

The petitioner is also aggrieved by the finding of the High court that the ingredients of Section 4, dealing with penetrative sexual assault, are equally applicable to men and women. The High Court had observed that “The language of the provision clearly indicated inclusivity".

She has further challenged the High Court’s view that the delay in registering the case could not be a ground to quash proceedings, given the nature of the offence and the age of the victim. The High Court had said, “The submissions of psychological impossibility and absence of potency testing, fall flat in the light of the modem jurisprudence".

The woman’s plea argued that while the Act is broadly gender neutral, that does not mean every offence under it applies to all genders alike.

"Each offence under the Act must be understood from its wording, language and the context in which the same was drafted. As regards Section 3 of the Act, the language and wordings of the provision clearly indicate that the said offence can only be committed by a male person," the plea stated.

It further asserted that ‘Penetrative sexual assault’ indicated that the penetration can only be done by a male person.

"Clause (a) of Section 3 starts with the words 'he penetrates his penis' which clearly reveals that the offence is committed by a male. Clause (b) of Section 3 states 'he inserts, to any extent, any object or a part of the body, not being the penis', which also clearly indicates that the perpetrator is a male person as the phrase 'not being the penis' highlights that the perpetrator is a male person," the plea said.

As per Clause (c), it continued, “the adult perpetrator manipulates the child to penetrate the vagina, urethra, anus or any body part of the child. Again, the act of penetration is done by the adult male perpetrator".

"Had the intention of the legislature be such that all the offences under the Act are gender neutral, then there would have been no bifurcation of sexual assault and penetrative sexual assault as sexual assault by the words and language employed in Section 7 of POCSO clearly shows that the offence is gender neutral while penetrative sexual assault in Section 3 is by a male person," her plea added.

The petitioner also contended that the High Court erred in holding that the ingredients of offences under Sections 4 and 6 were clearly made out. She said the case had not yet reached the stage of arguments on charge before the trial court, and the High Court’s observations had prejudiced her defence.

Her plea argued that the observations made by the High Court were liable to be expunged, adding that “There is a delay of 4 and ½ years which has been brushed aside by the High Court on flimsy grounds".

Case Title: Archana Patil vs State of Karnataka & Anr

Order Date: October 8, 2025

Bench: Justices M.M. Sundresh and Satish Chandra Sharma