Teenage Relationships May Be Dealt On Different Footing But Hands Are Tied Till Law Is Amended: Delhi High Court

While directing framing of charges under POCSO Act against a man despite the victim stating in her statement recorded under section 164 of Cr.P.C. that she had a consensual relationship with him, the Delhi High Court has observed that its hands are tied till any amendment is carried out in law, though it may be desirable that cases of teenage relationships be dealt with on a different footing.

“Therefore, though it may be desirable that the cases of teenage infatuation and voluntary living with each other, eloping with each other or maintaining relationship, such as the present case, are dealt with on a different footing, the Court's hands are tied as far as framing of charge is concerned till any amendment is carried out by the wisdom of the Parliament of this country, if deemed appropriate,” Justice Swarana Kanta Sharma observed.

The court was hearing a plea filed by the Delhi Police challenging an order passed by the trial court discharging the accused for the offences punishable under sections 363 and 376 of IPC and section 4 of POCSO Act.

The FIR was initially registered under section 363 of IPC in 2017 on the basis of a missing complaint lodged by father of the victim who was 14 years old. 

However, the victim herself went to the police station and informed the IO that she had developed liking for the accused and left with him on the pretext that she was going to her relative’s house, but stayed with him in a friend’s house and they had planned to get married.

In her statement recorded under section 164 of Cr.P.C., she stated that she had voluntarily gone with the accused on several occasions and that her relationship with him was consensual.

The prosecution submitted that the trial court failed to appreciate that the age of victim at the time of incident was only 14 years and that her hymen was found “freshly torn” as per her MLC.

It was also contended that the trial court did not appreciate that the consent of a minor was of no consequence and the fact of her statement recorded under section 164 of Cr.P.C. was given unnecessary weightage.

On the other hand, the counsel appearing for accused submitted that the trial court had passed a speaking order and gave adequate reasons for discharge.

While framing charges against the accused under section 376 of IPC and section 4 of POCSO Act, Justice Sharma said that the mere reading of the POCSO Act makes it clear that the age of consent for sexual relationship is 18 years.

“Similarly, reading of Section 375 of IPC also makes it clear that sexual intercourse with a minor girl below the age of 18 years amounts to rape even if the minor has given her consent for the same,” the court noted.

While noting that the victim had completely exonerated the accused from every allegation, the court however said that the material placed on record by the prosecution pointed out that the victim was aged about 14 and half years on the date of incident which was also recorded by the Trial Court.

“In this case, since the victim is a „child‟ within the meaning of Section 2(d) of POCSO Act, the consent of the victim for physical relationship is of no consequence and cannot be of any help to the respondent/accused,” the court said.

It added: “The victim had clearly stated the factum of there being sexual intercourse between her and the respondent, though with her consent, but since consent of a minor under the age of 18 years is considered no consent, the acts of sexual intercourse or penetration would prima facie fall under the purview of POCSO Act and Section 375 of IPC for the purpose of framing charge.”

The court however observed that the offence punishable under section 363 of IPC was not made out against the accused considering that the essential ingredient of the act of enticing or taking away was absent in the case.

It said that there was no evidence on record or any sort of allegation from the victim that it was the accused who had enticed, allured or induced her to leave her house or had taken her out of her lawful guardianship.

“Thus, in view of the aforesaid, the present petition is allowed to the extent that charges be framed against the respondent/accused for offences punishable under Section 376 of IPC and Section 4 of POCSO Act,” it said.

However, the court clarified that the observations made by the court are for the purpose of deciding the matter and the trial court will not influenced by the same.

Case Title: STATE (NCT OF DELHI) v. VS

Citation: 2023 LiveLaw (Del) 218