No POCSO Act exception for romantic relationships involving minors: Madras High Court

The Madurai Bench of the Madras High Court recently held that person accused in a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) cannot defend himself on the ground that he was in a “consensual romantic relationship” with the minor victim [Arumugam Vs DSP].

A Bench of Justices N Anand Venkatesh and KK Ramakrishnan observed that the POCSO Act does not recognise consent given by a person below the age of 18 years. .

The Court made the observation in a case where it was argued that the POCSO-accused was around 19 years old when he entered into a "consensual" relationship with a girl studying in the 11th standard.

The accused contended that the POCSO Act  is not meant to punish teenage persons who had a relationship with a proper understanding.

The Court rejected this argument.

"The above submission made by the learned counsel for the appellant (accused) sounds very attractive and romantic, but however, the POCSO Act nowhere contemplates any romantic relationship and grants exception where a child has been subjected to sexual assault or penetrative sexual assault. Even assuming that it was consensual, the very object of the Act is to safeguard the right and interest of the child. There is no question of a child giving consent and such an eventuality is not even contemplated under the POCSO Act," it said.

It added,

“There is no question of a child giving consent and such an eventuality is not even contemplated under the POCSO Act. If consent is taken as a ground and the Court acts upon it, it will have very serious consequences and it will militate against the very objective of the POCSO Act."

The Court was hearing an appeal filed by a man challenging his conviction by the Additional Mahila and Sessions Judge, Srivilliputhur in a case involving criminal charges under the POCSO Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act).

The prosecution's case was that the accused and the victim had known each other since she was in Class 8. When she was in Class 11, the accused allegedly promised to marry her and had sexual intercourse with her repeatedly, resulting in pregnancy.

The man later allegedly refused to marry the victim citing her caste background. He was also accused of telling the victim to "go die" when she requested that he marry her. The victim is then said to have tried to die by suicide, by consuming poison.

The victim later delivered a child while she was being treated at a hospital. Her mother eventually filed a POCSO case.

The trial court had sentenced the accused to imprisonment for the remainder of his natural life under the POCSO Act. He was also convicted under the SC/ST Act and for attempting to abet suicide under Section 306 read with Section 511 of the Indian Penal Code.

The accused challenged this verdict before the High Court. One of the grounds on which he sought acquittal was that the relationship between him and the victim was consensual, even going by the prosecution's version of events.

The Court rejected the argument.

"A child below 18 years is incapable of giving consent in the eyes of law and therefore, even in a case where there is consensual romantic relationship with a child, it will attract the provisions of the Act and the concerned person has to face the consequences," the Court explained.

However, the Bench acquitted the accused of the charges under the SC/ST Act. It held that the relationship and the sexual acts were not on account of the victim’s caste, but arose from a relationship over a period of time.

The Court also acquitted him of the charge of abetment of suicide, holding that the alleged statement asking the victim to “go and die” would not by itself amount to instigation under Sections 107 and 306 IPC. It also noted doubts by a medical witness about whether the victim had consumed poison.

On sentence, the Court held that the alleged penetrative sexual assault had taken place before a 2019 amendment to the POCSO Act came into force on August 16, 2019. Therefore, the enhanced punishment introduced by the amendment could not be applied retrospectively in this case, in view of Article 20(1) of the Constitution.

The Court ultimately reduced the accused man's jail sentence under the POCSO Act to 10 years of rigorous imprisonment and a fine of ₹5,000.

The appellant-accused was represented by Advocates A Thiruvadi Kumar and PNSSM Ammaar.

The State was represented by State counsel (criminal side) G Karuppasamy Pandian.

[Read Judgment]