POCSO Act ignores social realities: Allahabad High Court asks Law Commission to recommend changes

The Allahabad High Court recently asked the Law Commission of India to recommend suitable amendments to the Protection of Children from Sexual Offences (POCSO Act by taking into account the social realities prevailing in India.

A bench of Justice Atul Sreedharan and Justice Achal Sachdev said such amendments may include vesting the Special Judge under POCSO Act with adequate discretion in exceptional cases to consider the circumstances of the case while determining the appropriate punishment.

The Court also suggested the possibility of alternative forms of punishment, including community service, to save people from cases arising out of ignorance of the provisions of the POCSO Act.

"The possibility of alternative forms of punishment, including community service, may also be examined, so that a family formed in circumstances arising from ignorance of the provisions of the POCSO Act is not unnecessarily disrupted in the very name of protecting girls and women below the age of 18 years," the bench said.

The Court made the observation while dealing with a habeas corpus petition moved by a man for production of his wife, stated to be a minor by her family.

The couple had eloped as the girl's family was against their marriage.

In response to the plea, the Court was told that she was sent to a children's home after she was found to be below 18 years. It was apprised that since then she has given birth to a child, who is now two-months old.

The petitioner is the child's father, it was stated.

Considering the facts of the case, the Court considered it appropriate to hear the married girl's father. He submitted that she is minor and that also her marriage with the petitioner falls within the category of "sapinda relationship" under Hindu Marriage Act.

However, the Court said that the couple's relationship has progressed beyond the stage of a mere matrimonial claim as it has resulted in the birth of a child.

The Court further said that the cases of this nature arise on account of abject poverty and illiteracy. The lack of awareness and understanding of the law results in violation of the POCSO Act, it added.

"However, ignorance of law cannot be an excuse for violating the law," the Court clarified.

In the present case, the Court noted that the victim girl has studied only upto Class V and cannot even read a Hindi newspaper. She can write only her name, it found after a brief interaction.

It also recorded that her father is illiterate and works as labourer, earning ₹10,000 to ₹12,000 per month. He has four more children and also looks after his aged parents, the Court said.

The Court explained that it was necessary to consider their background because their actions are required to be considered in the backdrop of the provisions of the POCSO Act.

It added that the full and literal application the POCSO Act in certain circumstances may have serious repercussions and consequences.

"Undoubtedly, ignorance of law is no excuse. However, if this principle is applied in a purely pedantic manner, the implementation of the POCSO Act may, in certain factual situations, result in consequences which may appear to advance injustice rather than justice," the Court observed.

The Court remarked that while enacting the legislation, sufficient regard was not given to the social realities prevailing in India, where a considerable section of the population remains illiterate or semiliterate who may not even be aware of their rights or the duties, obligations and legal consequences.

"In the present case, the facts disclose a situation where the natural course of human development appears to have come into conflict with the rigours of law," it noted.

It is natural for a child of about 15 years of age, upon attaining a certain degree of physical and emotional maturity, to experience attraction towards another person of the opposite gender, the Court added.

It further said that to expect such a child to understand the legal liabilities and consequences arising from their conduct would require the State to first ensure that a minor remains meaningfully engaged in education until attaining the age of majority and is provided with adequate opportunities to acquire vocational skills and, ultimately, stand on her own feet.

In this context, it expressed serious concern over the education system in Uttar Pradesh.

"When this law is applied to a society where the literacy rate is low and the quality of the State education system is, to put it mildly, a matter of serious concern. Questions inevitably arise as to why the prosecutrix attended school only up to Class V. Why was the State unable to ensure that she continued her education, or otherwise compel her to remain in school until she completed Class XII?"

The Court said it was shocking that the child who has studied up to Class V is unable to read a newspaper in her mother tongue and even more disturbing that she can only put her signature and not write anything more than that in Hindi.

The Court further observed that the issue pertaining to application of POCSO Act has already been raised before the legislature but it appears to have remained consistently silent on the matter.

"Even earlier, the Law Commission had been apprised of the gross injustice that can result from the strict application of the provisions of the POCSO Act," it added.

The Court thus again urged the Law Commission to examine the POCSO Act for appropriate changes.

The law must remain dynamic and capable of rendering complete justice having regard to the peculiar facts of each case, the Court said.

"The trial court ought not to be placed in a situation where, for want of sentencing discretion, it is compelled to impose a stringent punishment upon a person who is presently the husband of the prosecutrix and the father of her child, merely because he had eloped with her before she attained majority," the Court added

In the present case, the Court found that there are no reliable documents to ascertain the age of the girl stated to be minor by her father. It added that in absence of the documents, an ossification test conducted on the girl has assessed her age to be approximately 18 years.

Accordingly, it allowed the habeas corpus petition and ordered release of the girl to her husband.

"Under the circumstances, this Court holds that the corpus, i.e. petitioner No.2 herein, is a major and, having expressed her desire to reside with her husband, i.e. petitioner No.1, the present petition is allowed. The corpus is permitted to go along with her husband (petitioner No.1) from the Court premises itself," the Court ordered.

However, the Court clarified that trial court trying the POCSO case against her husband shall adjudicate the matter strictly in accordance with law and solely on the basis of the evidence led and recorded in that case.

Advocate Rakesh Kumar Mishra represented the petitioner.

Additional Government Advocate Deepakh Kapoor represented the State.

[Read Order]