Objectives Of POCSO Act, 2012 Vis-À-Vis Judicially Recognized Conundrum Of Teenage Romantic Relationships: An Analysis

I. INTRODUCTION

The Protection of Children from Sexual Offences (POCSO) Act, 2012[1] was brought with the objective of safeguarding the interests of children especially the rights of minors against sexual assault, sexual harassment, and pornography in addition to the establishment of special courts for trial of such offences. It was enacted in furtherance of the nation’s commitment to the International Convention on Child Rights, acceded by India on December 11, 1992.

Unlike the settled principle of criminal jurisprudence, where the burden of proof to establish a case lies on the prosecution, in POCSO cases the burden of proof lies on the accused person. Section 29 of the Act provides – “where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act,[2] the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” This means and implies that for every POCSO case, the accused is presumed guilty as per the language of the statute and the burden of proof lies on him to discharge such presumption. In this light, it becomes crucial to evaluate whether a survivor turning hostile can save the accused from burden of discharging a statutory presumption under Section 29 of the Act.

Lately, courts have been of the view that since the objective of the Act is to safeguard the interest of children from sexual assault and its aggravated forms, an act of consent between the parties close to 18 years of age/adolescent sexual relationships may be viewed leniently if the facts and circumstances suggest wilful consent. Further, considering that the accused in such cases are of young age and may face adverse consequences if sent behind bars, courts have been comparatively liberal in their approach.

As much as this approach is welcome, it may be problematic where there is no “continued consent” on the part of the survivor – it may be possible that two adolescents enter into a relationship and engage in consensual sexual acts, however, after a while the girl moves out and repel any further sexual/intimate act. How do we protect a minor against forced sexual assault, in a case where the consent was visibly absent after a point in time – can the tender age of the accused weigh above age and continued consent of the survivor, is a question we need to answer when we account in “consent” as a factor in acquitting or bailing out an accused in POCSO matters. Parallely, this may also be seen against the right of an accused to be enlarged on bail as Section 29 is essentially a matter of trial, and if no flight risk is involved or if it can be sufficiently shown that the accused is ready to cooperate with the investigating agency, amongst several other determinants of bail, it is imperative for the courts to consider the case for bail of the accused.

II. RECENT JUDICIAL TRENDS

• Ashik Ramjaii Ansari v. State of Maharashtra[3] – While setting aside the conviction of an accused under S. 376 IPC and Ss. 4 and 6 of the POCSO Act, the Bombay High Court recently held that when it can be specifically inferred from the conduct of the prosecutrix that she was capable of understanding the consequences of her act, merely because the statute provides punishment for sexual indulgence with a minor cannot attract liability against the accused. The survivor in the present case was 17 years 5 months and the man was 25 years. Charges of kidnapping the prosecutrix from Bombay and taking her to Gujarat, later UP and committing rape and aggravated sexual assault under POCSO Act were levelled against the accused.

Court inter-alia observed, “Different behavioural experimentation is seen in early adolescence, risk-taking in middle adolescence, followed by a stage of assessing their own risk factoring, accompanied with change in lifestyle due to urbanization, migration, education, and mixing of cultures, each factor contributing in it's own way towards the development and its manner. Adolescence is a period during which individual's thought perception as well as response gets colored sexually It is an age to explore and understand sexuality. Sexual curiosity in adolescence often leads to exposure to pornography, indulgence in sexual activities, and also increase in the vulnerability for sexual abuse.”

Three particular depositions by the minor girl – that parties were in a love affair, that she did not accompany her family as she intended to elope with the accused and that her father was against their relationship, were primarily considered in exonerating the accused.

• Imran Iqbal Shaikh v. State of Maharashtra[4] – The Bombay High Court allowed bail application of a man aged 22 years, charged with offences under Ss. 363, 376 of the Penal Code, 1860 and S. 4 of the POCSO Act. The girl claimed that she was sleeping in a rickshaw when the applicant called her to the terrace of a building and forced himself on her. She further claimed that on 07.01.2021 the applicant once again had sexual relationship with her. The court enlarged the applicant on bail considering factors such as prolonged custody, pendency in trial and the objective of POCSO Act, not being to punish minors in consensual relationships.

“The statement of the first informant prima facie indicates that the relationship was consensual”, it was observed.

• Mohd. Amaan Malik v. NCT of Delhi[5] – The Delhi High Court while rejecting a petition seeking quashing of FIR for offences under the POCSO Act, recently observed,

“In certain instances, following a sexual assault, a disturbing pattern emerges where the accused marries the victim, seemingly to evade criminal charges, only to promptly abandon the victim once the FIR is quashed or bail is secured. Shockingly, numerous cases have come to light where the accused deceitfully enters into a marriage under the guise of willingness, particularly when the victim becomes pregnant as a result of the assault and subsequent DNA testing confirms the accused as the biological father, and even after solemnization of marriage and subsequent immunity from criminal prosecution, the accused heartlessly deserts the victim within a few months.”

The parties had solemnized marriage and entered into a Nikahnama dated 09.04.2021, while the victim was still a minor. There were specific allegations as well as statements under S. 164 CrPC that the accused had taken the victim to a guest house and committed sexual assault upon her. Further allegations were that he had gathered inappropriate images and videos with the minor and under threat of publishing the same, repeated the act of sexual assault until the victim conceived.

• Atul Mishra v. State of UP[6] – The applicant was seeking bail for offences under Ss. 363, 366, 376 of the Penal Code, 1860, Ss. 3,4 of the POCSO Act, 2012 and Ss. 3(2)(v), 3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989. It was a case of teenage romantic relationship, where the accused and the prosecutrix fled and got married in a temple in Delhi and remained in each other’s company for around two years, during which the prosecutrix also gave birth to a child. The Allahabad High Court while allowing the application for bail, observed,

“the childhood domestic training of the adolescent teenagers should be blamed and targeted, where their parent have miserably failed to inculcate the values of life, the family traditions, their focus towards the life and their priorities. It is the parent to be blamed for their complete inaction and their responsibilities qua their children. Lodging the F.I.R. would not be going to absolve them from their failure as parent. But all said and done, if these teens decided to enter into nuptial knot and now they have baby out of this relationship, certainly rigors of POCSO Act would not come in their way.”

• Rahul Chandel Jatav v. State of MP[7]– In a petition seeking quashing of FIR for offences under Ss. 376(2), 376(3), 315, Ss. 5(L)(O)/6 of the POCSO Act and S.66 IT Act, the Madhya Pradesh High Court recently said that the criminal law amendment that altered the consent age of prosecutrix, from 16 to 18 years, disturbed the social fabric of the society.

“Now a days, every male or female near the age of 14 years due to social media awareness and easily accessible internet connectivity is getting puberty in early age. Owing to this, female and male child are getting attraction and these attractions are resulting into physical relationship with consent. In these cases, male persons are not at all criminal. It is only a matter of age when they come into contact with female and develop physical relationship”, Court observed.

A request was further made to the Union for reconsidering the age of consent to be lowered down to 16 years.

It is pertinent to state that recently, the Law Commission of India suggested for applying guided judicial discretion in sentencing where there is tacit approval of relationship by girls of 16 to 18 years, instead of lowering the existing age of consent under the POCSO Act.

III. OPINION OF EXPERTS

• Mr. Priyank Kanoongo, Chairperson NCPCR, emphasized that POCSO Act is a special enactment safeguarding the interest of children and cases of sexual assault or aggravated sexual assault as provided under the Act should be seen and construed in light of the statutory provisions –

“We should focus on the objectives of the POCSO Act… for benefitting Sharia, we cannot sacrifice POCSO Act”.

The aspect of the survivor turning hostile and that benefitting the accused, was further highlighted.

• Calling it a complex kind of problem, Ms. Prita Jha, Director Peace and Equality Cell, Ahmedabad, an organisation working exclusively to prevent child sexual abuse, said –

  “The only way out is to trust and train your judges. Each case has to be evaluated on facts and circumstances… In a case where the perpetrator is 50 years old and the victim is 17 years, I would not consider it an appropriate case for bail on consensual relationship, however, where the accused is 22 years and the victim is 17, a fair case of teenage romantic relationship can be made out… provided consent, violence or other similar factors are taken into account properly”.

  "Primacy should be given to the testimony of the survivor and if possible, should be spoken to privately considering family pressure in such cases"

  "It is time we accept adolescent sexuality", Ms. Jha added.

• Advocate-on-Record, Supreme Court of India, Mr. Namit Saxena, expressed his agreement to consensual romantic relationships as a determining factor in granting bail in POCSO cases, stating that,

“prolonged incarceration may have adverse effects on the accused where he is a young boy of 18-20 years”.

On the dynamics of age difference in such cases, it was added,

“If the age difference is 17 and 35, you cannot presume a consensual relationship because consent in such cases may be vitiated by some external factors”.

IV. CONCLUSION

POCSO Act, 2012 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. However, this has to be seen from 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.[8] The aforesaid observation brings us to a definite conclusion that the Act does not criminalize “adolescent sexuality” or “adolescent consensual relationships”, however, in order to strike a balance between the objectives of the Act and teenage relationships, following are certain recommendations that may be considered:-

1. Judicial training and discretion – Cases under the POCSO Act, 2012 are of myriad nature and it is not possible to devise a uniform rule for all. In such a case, it is important to equip our judges well and vest them with wide discretion in matters related to teenage romantic relationships. Courts will have to assess the facts and circumstances of each case, in order to determine the guilt of the accused and sentencing as well, has to be rendered in accordance with the facts of every given case. With the duty to uphold the objectives of the POCSO Act, it is also the duty of the judicial system to ensure that no one is punished for an act he did not commit – for an act that was consensual, more so when the accused is a young person in early twenties.

2. Continuing consent – In order to avail the benefit of “teenage romantic relationship” the accused while discharging his guilt in pursuance of Section 29, must also prove that the consent was absolute and a continuing one. There may be cases where the survivor is forced to engage in sexual act, without her consent/under threat of publishing past pictures or on pretext of marriage. Compromise between the parents of the survivor and the accused is another element that may be taken into account while assessing the consent of the survivor, in true terms.

3. Section 29 and testimony of the survivor – The statutory mandate of the accused to discharge this presumption and the judicial approach of giving benefit to the accused on survivor’s testimony, must be clarified and reconciled by way of a legislative act or judicial interpretation.