Consensual sex with a girl above 16 can be excluded from rigorous provisions on the POCSO: Madras HC

Consensual sexual acts performed with a girl over 16 years of age can be excluded from rigorous provisions on the POCSO Act, the Madras High Court suggested on Friday. The court said that more “liberal provisions” can be introduced, within the Act, to deal with such cases. The suggestion was made in a bid to distinguish teenage relationships from the sexual assault of children below the age of 16. 

The observation was made by Justice V Parthiban while allowing a criminal appeal filed by Sabari aka Sabarinathan aka Sabarivasan. Sabari was sentenced by a sessions court in June, 2018, to undergo 10-year jail time. According to Belukurichi police, he abducted a 17-year-old school girl and married her. Later, he took her to Bengaluru where they indulged in sexual intercourse. The girl, however, denied the charges against Sabari.  

Justice Parthiban said the Act can be amended to the effect that the age gap between the offender and the girl is not more than five years – with the boy being older – for liberal provisions to be enacted. “This is to ensure that the impressionable age of the victim is not taken advantage of by a person much older and beyond the age of presumable infatuation or innocence.”

Vidya Reddy, the co-founder of Tulir, said she was in favour of the redefinition. “The move was suggested in the fourth draft when POCSO was being framed. It was removed from the final Act on ‘moralistic grounds’. When they say the age has been lowered to 16, there is a qualification as to how the consent was obtained.” However, some activists are concerned that the move may be detrimental in cases where the intent of deceit is clear. “There are chances that cases like Pollachi gang-rape – where there seems to be a clear intention of deceit -- may be closed by concluding the relationship was consensual,” says Andrew Sesuraj of TN Child Rights Observatory. 

Back in the courtroom, the judge noted that a majority of cases in this category are to do with teenage relationships. “...The relationship invariably assumes penal character by subjecting the boy involved to rigours of POCSO Act. Once the age of the girl is established as below 18 years, the boy involved is sure to be sentenced to seven years or 10 years,” the Judge said. “Such relationship cannot be construed as an unnatural one or alien. But, in such cases where the age of the girl is below 18 years, though she was capable of giving consent for relationship, being mentally matured, unfortunately,  provisions of POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of the Act.” The judge acquitted the accused in the case.