The POCSO Act and Teenage Relationship

Syllad | The Rising MeghalayaJune 5, 2022

“With or without consent, it’s rape if the girl is less than 18 years”: POCSO Act 2012

The POCSO Act is one of the most stringent laws enacted by the Parliament that has been brought to protect children below the age of 18 years from sexual exploitation. However the provision of the POCSO Act in the present day world is in great conflict with teenage relationship that is prevalent amongst youngsters throughout the world.

With the advent of mobile technology, internet, social media and other factors there is so much growth of dissemination of information and connection with different people across different location and all this factors influence our people to the western style of living. Today, we have witnessed the growth of teenage relationship between youngsters how declared love for each other and pledge loyalty towards each other.

This teenage relationship is also very common for girls and boys between 14-20 years. In many occasions, we have witnessed, a girl of 15-17 years is having a love relationship with a boy of 18-20 years of age and this varies from person to person. It is often seen and witnessed that such teenage relationship between a minor girl and a boy leads to romantic love and also sexual relationship with each other. For both the girl and the boy loves each others, the girls even though she is a minor she has consented and voluntarily agree to enter into a sexual relationship with her lover whom she consider her future.

Though this sexual relationship between a minor girl below 18 years of age and her lover, as to them is completely fine and fair and no offence has been made by the boy as the act was a consensual act, however this sexual act is hit by the Protection of Children from Sexual Offences Act 2012 and also Section 376 of the Indian Penal Code 1860. And in bold letter, this act in law is called as “RAPE”.

This is because of the fact that the Indian Penal Code and the POCSO have declared that sex with a minor with or without her consent amounts to rape and the lover herein has violated the POCSO Act and is punishable harshly by the POCSO Act starting with a minimum of 10 years. This thus, major become a life battling issue for the male person as he has to fight for life.

As long as the sex is in this context and is not out in the open, the boy is still safe from the law but once this sex comes to the knowledge of a doctor or family members, then the possibility of POCSO being invoked against the lover is very high. This is because in many cases I have seen, the family members disapprove or unhappy with the boy having sex with their daughter or family members and hence a case is registered under appropriate law against the lover. And sometimes, the minor girl lover who thereafter called as a victim after the case has been registered due to fear from her family members, police , society, stigma and other factors denies that she had sex voluntarily with the her lover and also claim that he rape her, this is inspite of they being in love with each other.

In such situation, where the minor girl lover in her deposition and evidence before the court claims that she had been rape by her lover, then it is safe to say that the fate of the lover is sealed, that is in jail.  For a matter of fact, even if the girl say that she is in love with her lover and that they had physical relationship with each other with their own free will, however even then this statement is again enough to convict the male lover and sentenced him to jail.

It is this part, which I am very concern, as the male lover has to suffer imprisonment for the act which they consider it as an act of love.  Even the girl, will suffer if the boy is punished for the act of physical relationship between them. IN such situation, both the victim and the accused are being punished and particularly the lover carry a stigma of a RAPIST even when is out from jail. The real question here, is this real justice the law seeks to give? Does this fulfill the objective of the POCSO Act which seeks to protect the minor children from sexual offences? Because. For the lovers, sex with consent and love does not constitute a sexual offence. Pity, the lover for he has to bear the brunt of a stringent law in the name of love. For an essential element of crime is mens rea ( or guilty mind or a criminal mind) but in such cases the boy lovers do not have any such guilty intention to commit a crime.

It is also pertinent to note that, in such cases there is no scope of compromise or amicable settlement and if any one tries or attempt to compromise such matter, then the law will deal such person with an iron hand. NO COMPROMISE.

 In such cases and satuation where both the accused and victim are love or where both of them are living as husband and wife, the only possible remedy is to approach the Supreme Court or High to invoke their inherent power to quash such criminal proceedings. Just recently, the Hon’ble High Court has quashed several criminal proceedings under POCSO act. Recently, Meghalaya HC in its judgment in one of the cases the Court said such cases of consensual or voluntary sexual intercourse with an underage girl by an adult man while they are living as husband and where the wife gives birth to a child, are complex.

“Further, , the Court noted that being a child and not capable of giving consent, the act of sexual contact made by the Husband-Accused was contemplated to be punished as aggravated penetrative sexual assault, however, the Court further opined that the act committed under the circumstances of the instant case cannot be called or termed in any logical or rational sense as a case of assault as there was no threat or attempt to inflict offensive physical contact or bodily harm on the petitioner No. 2 has been made out.”

In one of the case, when Meghalaya HC granted bail to the accused person under POCSO Act, the Court observed that

“On perusal of the records, particularly the statement of the victim and the accused, prima facie it is apparent that there is a romantic relationship between the two and that the sexual act involved between them was one of consensual, notwithstanding the fact that in the case of an alleged victim being a minor, consent has no legal validity, however, this aspect of the matter cannot be lost sight of while a plea for grant of bail is being considered by the court.”

The law is very stringent on this matter and until there is an amendment to address such issues of teenage relationship, all person should refrain from having sexual relationship  with a minor girl or even boy to avoid the stringent provision of law to be invoked against them. For once, POCSO is invoked; the life of the lover will turn upside down completely and the stigma will last forever as the POCSO shows no mercy.

In my few years of practice, I have witnessed many such cases and many eventually ends in conviction and this affects the lives of the accused person and his family to a very large extend. All understand the nature of the act, however the POCSO Act has to be followed as laid down. To save your future and your loves ones, avoid such physical relationship as once the law catches you, the story ends there.

If you wish to have consensual sex with your partner, make sure you get a copy of  the birth certificate which signifies that she is 18 years and above for the law trust in proof.  Know the law, as ignorance of law is no excuse and because of such ignorance, your future and partner’s future will be at stake.

By | Mr. Kynjaimon Amse
Advocate