Punishing teenagers for consensual sex not the objective of POCSO Act: Plea in Supreme Court challenges Madras High Court order

A petition has been filed in the Supreme Court against a recent Madras High Court order dismissing a plea filed by a rape complainant seeking to depose before the Court that her sexual relations with the petitioner were consensual..The petitioner, against whom a rape complaint was filed in 2015, has contended before the Supreme Court that the objective of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is not to punish teenagers who engage in consensual sex. “Punishing teenager having a consensual affair which later turns out to be sour for any reason cannot be considered as an objective of the Act and it would only defeat the purpose of the Act. The Act is silent on the aspect where two individuals though may be less than 18 years, enters into a consensual relationship and in the absence of this, certainly the application of law in the Act cannot be permitted to charge and punish individuals in such relations keeping the fact of changing societal needs,” the plea filed through advocate Rahul Shyam Bhandari reads. .The petitioner and the complainant had developed a love affair while studying in school. The petitioner, on the pretext of marrying the complainant, had developed a physical relationship with her. When the complainant later insisted that they get married, the petitioner allegedly refused, on the pretext that his parents were contemplating his marriage with another girl who may give a huge dowry..The complainant then lodged a criminal case under Sections 417 (punishment for cheating), 376 (punishment for rape) and 312 (punishment for causing miscarriage) of the Indian Penal Code, and under Section 5(l) [repeatedly committing penetrative sexual assault on child] read with Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act against the petitioner. The petitioner denied the charges, insisting that the sexual relationship was consensual..At the time of the alleged offence in 2014, the complainant’s age was stated to be 17 years old. The complaint was lodged after almost a year, by which time the petitioner had turned 18, and the complainant was 17 years and 10 months old..During the trial, the complainant filed a petition under Section 311 of the Code of Criminal Procedure (CrPC) praying that she be examined before the trial court. During the examination, she stated that she was not forced to engage in sexual relations with the petitioner, and that her earlier allegations were made at the behest of the State. She further stated that she wanted to live happily with the petitioner and had been in a live-in relationship with him..However, in April 2019, the trial court dismissed the petition and refused to take this evidence of the complainant on record, on the ground that she should have filed the petition through the public prosecutor. The petitioner was thereafter found guilty of the charges under the POCSO Act and sentenced to ten years’ imprisonment along with a fine of Rs 5,000 and a direction to give Rs 1 lakh as compensation to the victim..This prompted the petitioner to approach the High Court, which initially suspended the sentence in June 2019. During the course of proceedings, in February this year, the complainant filed an affidavit in support of the petitioner’s appeal, stating that she had been in a live-in relationship with the petitioner for the last four years and that they have no grievance against each other. She further stated that the past sexual relations were consensual and that the couple intended to get married..The petitioner also filed an additional affidavit, praying that the victim’s evidence be taken on record. However, in its March 16 order, the High Court dismissed the petitioner’s application and refused to take the victim’s additional evidence on record..In his plea before the Supreme Court, the petitioner has stated that the March 16 order is contrary to the judgment passed by the High Court in Vijaylakshmi v. State, wherein Justice Anand Venkatesh held that the POCSO Act does not intend to bring within its scope cases involving adolescent teenagers in romantic relationships..Calling for amendments to the POCSO Act, the Court had held in that case that urged the legislature to take into consideration cases of adolescents involved in consensual relationships and bring necessary changes to the Act. "It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act," the Court had said in that case. .The other grounds raised by the petitioner include:The application of the victim under Section 311 CrPC was wrongly rejected by the trial court, against the mandate of Section 40 of the POCSO Act.The High Court failed to consider the evidence given by the woman stating that they were in a live-in relationship for the past four years.The High Court failed to consider that even if the allegations of the prosecution are believed to be true, the same would not have constituted an offence under the Act. There was no element of cheating.High Court erred in concluding that a person above 18 years having sexual relationship intentionally with a child under 18 years is an offence without considering that the entire affair was a consensual affair..On these grounds and others, the petitioner has prayed that the March 16 order of the High Court be set aside.