Eagerly waiting for legislature to reduce age of consent under POCSO but until then consent of victim below 18 immaterial: Madras High Court

The Madras High Court recently said that it is "eagerly waiting" for the legislature to reduce the age of consent under the Protection of Children from Sexual Offences Act (POCSO Act) from the current 18 years [Ravi @ Virumandi v State and another]..However, as long as the POCSO Act defines anyone below the age of 18 as a child, the court could not interpret the age of consent in any other way, the High Court said."Whereas, the law defines that the person who has not completed the age of 18 years, is a child. This Court, being an Appellate Court, is a final fact finding Court cannot traverse beyond the statute. This Court also eagerly is waiting for the amendment in the Legislature as expressed by my learned brothers," the Court stated.It, therefore, upheld the conviction of a man sentenced to seven years imprisonment for having kidnapped and repeatedly raped a 17-year-old girlThe man had challenged his conviction by the lower court and argued that the relationship was a consensual one. He urged the court to take a discretionary approach to determine whether a 17-year-old was capable of giving an educated consent or not.The High Court, however, held that as long as the law defines anyone below the age of 18 as a child, the Court could not interfere.Justice P Velmurugan agreed that benches from several courts have treated the age of 16 to 18 as a grey area and used their discretion on a case to case basis; however, he said that such judgments were mere opinions and not legal findings. "Further, as far as the other decisions of this Court referred to by the learned counsel for the appellant are concerned, though this Court has expressed the view that the teenage persons who have completed 17 years and not completed 18 years may not be punished under the POCSO Act, with great respect to the learned brother Judges, that it is the opinion of the particular Judge and it may not be a finding in all cases. In the present, the victim was a minor and the appellant took the custody of the minor without the knowledge or consent of her natural guardians and had committed penetrative sexual assault on her and hence, the offence committed by the appellant falls under Section 5(l) which is punishable under Section 6 of the POCSO Act, the Court ruled..The Court went on to say that the prosecution had submitted the victim's school certificates to show that at the time of the incident, she was 17 years of age and will, therefore, be considered a 'child' as defined under Section 2(1)(d) of the POCSO Act. The Court further said that under the Act, the consent given by a minor was not valid consent and thus, an accused cannot take advantage of such consent. It said that once a court declared that a victim was a child and she came under the definition of the POCSO Act, her consent was immaterial. ."Though the learned counsel for the appellant vehemently contended that the act committed by the appellant does not fall under Section 366 IPC, the victim voluntarily went along with the appellant to Bangalore and with her consent, he married her. However, at the time of occurrence, the victim was a child and so, consent is immaterial and if the Court finds that the custody of the victim is removed from her natural guardians, that too for the purpose of marriage, the act committed by the accused falls under Section 366 IPC. Therefore, the contention raised by the learned counsel for the appellant is not acceptable," the High Court held. Advocate Naveen Kumar appeared for the petitioner.Additional Public Prosecutor S Sugendran appeared for the respondent state. .[Read Judgment]