"Consensual Sex Between Minors A Grey Area Under POCSO Act": Bombay High Court

The Bombay High Court on Thursday observed that enactment of POCSO Act has been a "significant and progressive step" in securing children's rights, however, incidents of consensual sex between minors has been a grey area under the law as minor's consent is not valid in the eyes of law.

The observation came  from Justice Sandeep K. Shinde while granting bail to a 19 year old boy convicted for repeatedly raping her minor cousin under sec. 4 and 6 of the POCSO Act along with sec. 376(2)(n) and sec. 354 of Indian Penal Code, 1860.

The incidents date back to the September 2017 when the victim was in her 8th standard and was living in the house of the accused (son of her paternal uncle) since 2 years.

The bench while looking at the unique facts of the case observed that during the course of investigation, the victim under her sec. 164 Cr.P.C. statement had disclosed that "it was a consensual act, not once but at least 4-5 times."

It is at this outset that the Court observed:

"I am conscious of the fact that the passing of POCSO has been significant and progressive step in securing children's rights and furthering the cause of protecting children against sexual abuse. The letter and spirit of the law, which defines a child as anyone less than 18 years of age, is to protect children from sexual abuse."

The single judge went ahead to observe "I am also conscious of the fact that consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be a valid consent in eyes of law."

In view of this, the Court granted bail to the accused by observing that since the victim resiled from her statement and further disowned the contents of her sec. 164 statements, the accused is entitled to be granted bail. Furthermore, the bench observed that the opinion of doctor which concluded the sexual assault was subject to FSL report which was not obtained in the instant case till the conclusion of the trial.

The bench also took note of the circumstances surrounding the case that the facts of the case are distinctive contributing to the victim being the first cousin of the accused and both of them being of the age of 15 and 19 years old at the relevant time and the same cannot be overlooked. Therefore, the Court granted bail to the accused on executing a personal bond of Rs. 25,000 with one or two sureties of like amount.

Judgment dated: 04.02.2021

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