POCSO Act Has Caused Widespread Injustice In Tribal Hamlets & Rural India Causing 'Uncalled For Arrest & Incarcerations': Orissa High Court

The Orissa High Court has flagged the issue of widespread injustice caused to the people of rural area, particularly to the people of tribal hamlets due to the strict provisions of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act').

The Single Bench of Justice Sibo Sankar Mishra said that the legislation has resulted in uncalled for arrests and incarcerations of people from tribal areas and held –

“Adivasi and the tribal have their unique customs and traditions with girls and boys marrying and living together after reaching puberty...Unfortunately, many grooms over the age of 21 years have been arrested for marrying brides under the age of 18 years. The tribal population in India is mostly illiterate. Hence, they often fall into the grips of the POCSO Act.”

The Court was hearing a batch of petitions filed under Section 482 of the CrPC praying to quash criminal proceedings pending against the petitioner under the POCSO Act. The petitioners submitted that there have been mutual settlements in their respective cases and they have married the respective victim and thus, continuation of criminal proceedings would not be in the interest of justice.

The Court acknowledged the rising trend of adolescent romantic and sexual relationships. Discussing the judgments of different High Courts on the issue, the Court observed that the Courts across the nation have shown reluctance in prosecuting young people for consensual love and physical relationships.

The Court particularly highlighted that the statute had a negative effect on the people of rural area, especially the tribal and Adivasi people.

“Adivasi and the tribal have their unique customs and traditions with girls and boys marrying and living together after reaching puberty. The marriage in these communities marked as a tradition from adolescence to adulthood and men are considered ready for marriage based on their physical fitness,” it added.

The Court also pointed out that as per the Muslim personal law, minimum age of marriage of a girl is when she attains puberty. The age of puberty is presumed to be 15 years in absence of evidence of exact age of attainment of puberty.

As per the POCSO Act, the Court said, a child below the age of 18 years is incapable of giving consent for sexual relations. Thus, any sexual relationship with a child below the age of 18 years would lead to an offence under the POCSO Act. However, this position stands to be challenged in the face of personal laws, wherein children are eligible to get married below the age of 18 years.

“Now a question arises if a valid marriage between a man and a girl below the age of 18 years is consummated, will the husband be liable under the POSCO Act? This doubt arises even in the face of Section 42A of the POCSO Act, which gives it an overriding effect.”

The Court said that the aforementioned statutory and customary conflict needs to be taken into consideration while exercising the jurisdiction under Section 482 of the CrPC, particularly, when the accused and the victim have settled their dispute and leading a happy marital life.

Case Title: Rojalin Rout & Anr. v. State of Odisha & Anr and other connected cases

Case No.: CRLMC No. 3460 of 2023 & connected cases

Date of Judgment: April 22, 2024

Citation: 2024 LiveLaw (Ori) 29

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