Supreme Court Explores Sentencing Options In Case Where Minor Victim Married POCSO Convict; Flags Systemic Failures In Protecting Girl

Dealing with a case where a minor girl victim of sexual assault eloped with and married the man facing charges under POCSO Act, the Supreme Court today called for the suggestions of Amici Curiae appointed by it for the prevention of suffering of adolescent girls and their families.

"These are some of the issues very difficult for Court to resolve. When we see such matters, we realize that there are grave limitations on our power", said Justice Abhay S Oka.

To recap, this case arose out of the Calcutta High Court judgment where a division bench acquitted the accused who was sentenced to 20 years in prison for establishing sexual relations with the minor victim, and issued a slew of recommendations including that an adolescent girl must "control sexual urge/urges as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes".

Subsequent to this judgment, the Supreme Court had taken suo motu cognizance of the case with respect to remarks made by the High Court on teenage girls. Highlighting that the High Court's observations were not only "highly objectionable" but also "completely unwarranted", as they violated the rights of adolescents under Article 21 of the Constitution, the top Court had criticized the judges who penned the verdict and voiced disapproval of a general trend of various Courts indulging in "victim-shaming" and "stereotyping" of sexual assault victims.

In August, 2024, the High Court judgment was finally set aside, while the Supreme Court also restored the conviction of the accused in the underlying case under Sections 376(3)/376(2)(n) IPC and Section 6 of the POCSO Act. Through this judgment, the Court further directed State of West Bengal to constitute a 3-member committee of experts to help the minor victim in the case to make an informed choice regarding her future.

Today, a bench of Justices Oka and Ujjal Bhuyan considered the final report of the Committee and thereafter called for suggestions of the Amici.

During the hearing, Senior Advocates Madhavi Divan and Liz Mathew (Amici Curiae) took the Court through the Report and submitted that it was a "very strong indictment of systemic failure at all levels - family, social, school, police and legal". They further claimed that the eloping of the victim with the accused, her living with him as in a marital relationship, and birth of the duo's child were all preventable circumstances.

The Amici informed that as per school officials in the subject area, there are many cases of elopement of girls and child marriages post 8th standard. Some girls, after marriage, return to the schools but there is an unwritten rule discouraging them from continuing education, as their experiences can "influence others" and "spoil them" (although they are permitted to attend board exams if they prepare through private lessons).

On the authorities' role in failing the victim, it was mentioned that the victim was allegedly asked to pay Rs.10,000 by the police official who came to arrest the accused, against reduction of charges to enable early release.

Referring to the victim's unpreparedness for the legal battles, in the backdrop of her financial situation and rural background, the Amici also told the court that lawyers still contact her to argue her husband's case. Mentioning the rates quotes by said lawyers to secure different reliefs, Amicus Divan said, "see how callously the system is working". "It's a rate card", commented Justice Oka.

Based on the report, the Amici further underlined the victim's fear of her family of 3 (the accused-husband, the victim, and their child) falling apart if the husband is arrested again, the financial burden undertaken by the victim to fight the legal battles since inception of the case (2018), concerns regarding education and upbringing of the duo's daughter, and the victim's realization of the consequences of her mistake (of eloping), which has led her to engage with adolescent girls in the area to encourage them to study.

Notably, to prevent suffering of adolescent girls and their families, the Report offered suggestions including:

- Schools should have a male and female counsellor trained and certified with a minimum qualification of post-graduate degree in psychology/clinical psychology;

- Sex education in schools from class 7 onwards;

- Measures to help a girl child to continue with her education in the school system without any stigma;

- Strengthening of child marriage reporting and tracking system and existing portal that records all child marriage cases, and rehabilitation measures;

- Portal to track POCSO cases and compounded offenses;

- Police training and monitoring;

- Increasing scope of child helpline (problems like child marriage, relationship issues, query regarding sexual orientation, suicidal tendencies, etc. should be heard and dealt with);

- Advertisements of child helpline in interior areas mentioning the issues for which one can call.

In conclusion, the Report, as read by Amicus Divan, stated that though the law viewed what happened as a crime - the victim did not. She was not traumatized by the legal crime, but by the consequences that followed. "A young woman who refuses to be called a victim for her husband needs all the support that can be made available. It would be in the best interest of the child if the family structure can be restored", it said.

Going through the same, Justice Oka commented that the Report was an "eye-opener" and the victim could not make any informed choice at the beginning. Responding, Divan said that now social norms have changed and children are becoming pubescent at an early age; as such, children, their families, and schools need to be sensitized and counselling needs to be made available. She also suggested that the Court invoke its powers under Article 142 of the Constitution to close the individual case at hand and put an end to the victim's ordeal.

"Resolving means no punishment for this man", noted Justice Oka. The judge also contemplated as to what would happen if the accused-husband, who is on good terms with the victim today, changes his attributes once he is granted the relief of not undergoing a jail sentence. In reply, Divan said that the state is supporting the victim and her child, and as per the Committee's report, the relationship of the duo appears to be a secure one.

At this point, Justice Oka expressed, "We see no option today of sending this man to jail. It would destroy the girl and the child". As an alternative, the judge considered keeping the order of sentence in abeyance till the duo's child grows up, so that there is some "pressure" on the accused-husband. "This is one case [where] because of the fault of the system, this man will get benefit. He will get benefit not because he has done something good, but to protect the victim and the child", the judge lamented.

When Divan said that the victim ought to have been provided legal aid at the outset, Justice Oka was quick to add that the legal representation should have been there to see that prosecution was carried out effectively. "Her agency has never been recognized by the legal system. Her decisions were never respected. She feels like a victim because of that, and not because of the [legal crime]", added Amicus Mathew.

On behalf of the State of West Bengal, Senior Advocate Huzefa Ahmadi outlined the various steps taken for welfare of the victim. These included - her enrolment in 10th standard in December, 2024, enrolment of the duo's child in the local Anganwadi centre as well as under a sponsorship programme under which Rs.4000 will be provided every month until the child attains age of 18 yrs.

Referring to judicial precedents, Ahmadi argued that under Article 142, the top Court does not have the power of remission or that of reducing sentence. Alternatively, he suggested that the Court may dispose of the matter by suspending the sentence of the accused for a substantial period (say 10 yrs), with liberty to the victim to seek modification. "Perhaps this is the only legal way in the peculiar facts of this case...I don't see any way of getting out of these decisions", he said.

Finding force in the submission, Justice Oka considered also providing for monitoring by a state officer or Committee, so that if there is any issue, even the state can approach the Court for sending the accused back to jail.

The matter is next listed on March 19.

Case Title: In Re: Right to Privacy Of Adolescents, Suo Moto WP(C) No. 3/2023