POCSO is gender neutral: Karnataka High Court Affirms Woman Can Be Charged with Penetrative Sexual Assault
In a significant judgment, the Karnataka High Court on August 18, 2025, ruled that the Protection of Children from Sexual Offences (POCSO) Act is gender-neutral and can be used to prosecute a woman accused of sexually assaulting a minor boy.
"The ingredients of Section 4 of the Act dealing with penetrative sexual assault are equally applicable to both men and women. The language of the provision clearly indicates inclusivity," court said.
The bench of Justice M. Nagaprasanna dismissed a criminal petition filed by an accused woman who sought to quash the charges against her under Sections 4 and 6 of the Act.
The case involves a 48-year-old woman and her neighbor, a 13-year-old boy. According to the complaint filed by the boy’s mother, the accused, an artist, offered art lessons to the victim and subsequently took him to her bedroom on multiple occasions between February and June 2020. There, she allegedly unrobed herself and the victim, forcing him to engage in sexual acts while threatening him not to disclose the incidents. A specific incident was detailed to have occurred on May 17, 2020.
The family of the victim moved to Dubai shortly after the alleged incidents. The victim, who was about 13 years and 10 months old at the time of the first alleged assault, began experiencing psychological distress and later confessed to his mother in February 2024, after undergoing therapy. A complaint was then registered with the HAL Police Station in Bengaluru, leading to charges under Sections 4 and 6 of the POCSO Act.
The petitioner woman challenged the FIR and charge sheet, arguing that the allegations were improbable due to the age difference and that the POCSO Act, specifically Sections 4 and 6, could not be alleged against a woman. Her counsel contended that for sexual intercourse, a man is the active agent and a woman is a passive participant. The defense also pointed to the use of the pronoun "he" in the relevant sections, suggesting the law was intended only for male perpetrators.
The respondents, including the complainant and the state, countered these arguments. They cited public data indicating that a significant percentage of 54.4% of sexual abuse cases involve minor boys as victims. They emphasized that the POCSO Act is a gender-neutral legislation and that the term "person" used in Section 3 of the Act encompasses both men and women. They further referenced Section 8 of the Indian Penal Code, which clarifies that the pronoun "he" refers to any person, male or female. The respondents also brought up a similar ruling by the Delhi High Court and noted that delays in reporting such crimes are common due to the psychological trauma experienced by child victims.
The High Court considered five key issues in its judgment.
1. It ruled that the POCSO Act, being a progressive enactment, is indeed gender-neutral, citing the legislative intent and the 2019 amendment which made this explicit.
2. It concluded that offences under Sections 4 and 6 of the Act can be alleged against a woman, rejecting the argument that a woman cannot be a perpetrator of penetrative sexual assault. "Sections 3 and 5 which form the foundation for offences under Sections 4 and 6 of the Act, delineate various forms of assault. Although certain provisions may employ gendered pronouns, the preamble and purpose of the Act, render such usage inclusive," court said.
3. Court highlighted that Section 3 of the Act's language is broad enough to include a person who "makes the child to do so with him or any other person," signifying that the act is not confined to physical penetration by a male.
4. Court also dismissed the arguments regarding the delay in registration of the complaint, noting that trauma often leads to delayed reporting.
5. It also rejected the claim that the absence of a male potency test vitiated the proceedings, stating that such tests are not routinely required and that the burden of proof for impotency as a defense lies with the accused. Court also noted that psychological trauma does not preclude physiological reactions.
Therefore, court found no merit in the petitioner's arguments and rejected the petition to quash the proceedings. It underscored that a full trial is an "imperative necessity" for the petitioner to prove her innocence, allowing the case to proceed on its merits.
Case Title: xxx vs. State of Karnataka and Another
Judgment Date: August 18, 2025
Bench: Justice M Nagaprasanna