MP High Court Urges Law Commission To Suggest Amendments To POCSO Act Permitting Correctional Measures Instead Of Jail Term If Victim & Accused Marry

Single Judge Bench of Justice Atul Sreedharan emphasized that the Act does not distinguish between an act of 'Rape' (without consent) and 'Statutory Rape' (as with consent but punishable because victim is below eighteen years of age). It highlighted the helplessness of the Trial Judges in such cases so far as imposition of sentence is concerned, and observed,

“…consensual sexual relations amongst the genders, outlawed only because legislation prescribes an age for consent and where the victim and the accused have married and are living together as a family with children then, in such cases, to apply the law literally, resulting in the husband being convicted for a period of not less than ten years [U/s. 4(1)] and for not less than twenty years if the wife was less than sixteen years at the time of elopement [U/s 4(2)] and again for a period of not less than twenty years for an offence u/s. 6 of the POCSO, is a travesty of justice. However, the Courts are helpless as they must enforce the legislative will as it is. The road to hell is indeed paved with good intentions.”

The Court drew a line of distinction between ‘rape’ and ‘statutory rape’. It said, rape is an offence malum in se, an evil punishable in all civilised societies, but statutory rape is an offence malum prohibitum which is otherwise not repugnant to human conscience, but which is prohibited by legislation taking contemporary social mores into consideration.

“In a case of statutory rape, the will and consent of the victim, who may have been an active participant in the sexual act, becomes inconsequential as the victim was below the age of consent which, in the Indian context is eighteen years and therein lies the problem.”

The Court highlighted that the POCSO offences are gender neutral and term “Child” is defined in s. 2(d) as “any person below the age of eighteen years”. It then proceeded to flag a very important issue.

“…how does the court proceed where both the girl and boy are below the age of eighteen and de facto consent is undisputed? In such a case, as both are below the age of consent, how will the court determine as to who is the victim and who the offender? Will the law require the prosecution of both as juveniles or will there be no prosecution at all under the POCSO?” it questioned.

The Court further opined that the provisions of the POCSO Act, as those relate to cases of penetrative sexual, aggravated penetrative sexual assault (rape), sexual assault, aggravated sexual assault and sexual harassment of a child, are just and proper where the offender is an adult and de facto consent is absent.

“However, its provisions do not distinguish between rape and statutory rape. It is in cases of statutory rape that the POCSO has the propensity of destroying families where the victim, usually on the cusp of majority, elopes with the accused, gets married, has children and later, the accused is put to trial and convicted and sentenced to a minimum of ten years rigorous imprisonment, which may extend to twenty,” it added.

Therefore, having regard for the above "oppressiveness" of the POCSO Act in its application to the marginalised sections of the society which are affected by illiteracy and poverty, the Court deemed it necessary to bring it to the notice of the Law Commission of India.

“…the operation of the POCSO in certain cases is disrupting and devastating families in rural Madhya Pradesh by sending the sole bread winner in the family to jail for a minimum of ten years, at times leaving his wife and children to the vagaries of social exploitation if the parents and the in-laws of the prosecutrix/wife are not willing to keep her. Where the prosecutrix is unemployed as is mostly the case, the options for survival are dismal ranging from prostitution to crime. The State has no obligation under the POCSO to provide for the basic minimum required for survival of the so-called “survivor”. The enforcement of the POCSO to such cases in its present form, does gross injustice,” the Court observed.

Therefore, it requested the Law Commission of India to consider the following and suggest suitable amendments to the POCSO Act:

(a) Where the prosecutrix is below the age of consent but de facto consent is apparent, not to have a minimum sentence and instead, give the discretion to the Special Court (who is a senior Session Judge usually with more than twenty years of judicial experience) to impose a sentence as per the facts and circumstances of the case, which can extend up to twenty years; and

(b) Where the prosecutrix is below the age of consent and the relationship has culminated in marriage (with or without children), there should not be any sentence of imprisonment and instead the Special Court be empowered to impose alternate correctional methods like community service etc.

Case Title: Veekesh Kalawat v. The State of Madhya Pradesh

Case Citation: 2023 LiveLaw (MP) 50

Counsel for the Petitioner: Ms. Ankita Sharma, Advocate

Counsel for the State: Mr. Naval Gupta, Public Prosecutor