HC suggests to exclude consensual sex with girl aged above 16 from rigours of POCSO Act
Sabari Vs The Inspector of Police
Criminal Appeal No.490 of 2018
About/from the judgment:
Redefine "child", exclude consensual sex after the age of 16 from POCSO, Madras HC
"More liberal provision can be introduced in the Act itself in order to distinguish the cases of teenage relationship after 16 years, from the cases of sexual assault on children below 16 years."
The Madras High Court has suggested to redefine the definition of 'Child' under Section 2(d) of the POCSO Act as a person below 16 years of age instead of 18 years so that any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.
The Judge took note of a report that majority of cases involving minor girls are due to relationship between adolescent boys and girls. Though under Section 2(d) of the Act, 'Child' is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigours of POCSO Act, the court said. The judge further observed:
"When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction. Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years."
The court said that more liberal provision can be introduced in the Act itself in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years.
"The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence."
The Judge further said that more than treating such growing incidence of sexual assault on women and children as a legal issue dealing with the offenders of sexual assault by resorting to most deterrent provisions of Penal laws, the cause for such perverse and wicked behaviour among some men, who were otherwise normal in their disposition, need to be examined and studied.
"The Society must collectively introspect what is it that drives some men to unleash their libidinous rage on hapless children and women of all age. The cause for such abominable deviant conduct on the part of the perpetrators of sexual crime on children and women is perhaps became of access to uncensored pornographic and erotic materials that are available on the internet 24 X 7. Access to such provocative and lewd sites lead to criminal sensuality that drives the perpetrators to commit such appalling crimes on children and women, in complete depravity. When minds are filled with lust, smouldering all the time by watching pornographic site of all kinds on the handset or otherwise, such crimes are the natural result of the depraved minds"
The judge also suggested constituting a high level committee comprising persons of eminence from various walks of life, like Social auditor, psychologists, Social Scientist etc., to investigate and study the malady afflicting the Society.
Read the Judgment
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