The Supreme Court of India on Tuesday observed that it has faced certain difficulties while considering the applicability of Protection Of Children From Sexual Offences, 2012 (POCSO) Act in cases where girls slightly below 18 years enters into physical intimacy with another adult.
The petition was preferred against an order of the Madras High Court in Maruthupandi v. State, holding that even if a minor girl falls in love and develops a consensual relationship with her partner, the provisions of POCSO Act will be attracted against the latter.
A Bench headed by Justice Indira Banerjee orally observed,
"We (Judges) have encountered these problems…There are serious difficulties because of the definition of "child" under the POCSO.."
Under section 2 (d) of the Act, a child is defined as any person under eighteen years of age.
Adding to this, Justice MM Sundresh, who was also part of the Bench, gave another example
"In some of the tribal areas, girls get married by 15-16 years of age. When they come to hospitals for delivery, their counterparts are also booked (under the POCSO Act).
The Court considering a petition filed by a man challenging an order of the Madras High Court which upheld his conviction under Section 6 of POCSO Act, 2012 for rigorous imprisonment of 10 years, for engaging in sexual relations with a girl aged 17 years and 10 months.
The counsel appearing for the petitioner boy, Advocate Rahul Shyam Bhandari submitted that the relationship of the parties was consensual and that, as of now, they had been married and cohabiting for over 4 years.
The petitioner also urged the court to consider the applicability of POCSO when the relationship is consensual. He had pointed to a series of such cases leading to abuse and harassment of a couple, particularly the boy who suffered incarceration despite consent on the part of the girl.
At this point, Justice Banerjee observed,
"We can't go into all that. All are sympathies to all... Usually parents lodge complaints. We have to look at the law as it stands today."
The Advocate further added that, in the present case, the sentence also was suspended by High Court in pretext that the boy was married.
The counsel appearing for the State Government Dr.Joseph Aristotle submitted that the intention of the POCSO Act is protect those girls who had lost their "choice". In the instant case, she had undergone an abortion, he apprised the Bench.
In an attempt to decipher the genuineness of the marriage, the Bench asked for a copy of the marriage certificate of the parties.
After a short discussion, Justice Sundresh said,
"They are married, what's the point the point in sending husband behind bars now. What will he the agony of the girl now?"
As the hearing progressed, the Bench further observed that parents of the children generally file cases against males under POCSO.
"The woman's interest has to be protected. We are holding symposiums and webinars on this issue, this is becoming a serious problem. If the complaint is filed by girl (Under POCSO or other legislations), then it is the end of it. But if it's not filed by her, that's the problem."
Aristotle submitted that liberty be granted to the girl to approach the court in case she wants to, if circumstances demand so.
"Because there have been such instances, I am speaking from experience."
The Court then posted the matter to September 9, on which day, Bhandari was asked to produce a copy of the marriage certificate.
Case Title: Maruthupandi Vs The State, Represented By Inspector Of Police | SLP(Crl) 2782/2021
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