Court moots redefining child under Pocso Act from 18 to 16 years

Pointing out that 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 rigors of Pocso Act, Justice V Parthiban said, “Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced to 7 years or 10 years as minimum imprisonment, as the case may be.”

“Therefore, on a profound consideration of the ground realities, the definition of ‘child’ under Section 2(d) of the Pocso Act can be redefined as 16 instead of 18. 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 and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself,” the judge noted.

However, 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 judge held that 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.

Justice Parthiban also directed the State Commission for Protection of Child Rights, The Commissioner of Social Defence and the Secretary, Department of Social Welfare and Noon Meal Programme, to place the decision before the competent authority and initiate appropriate steps to explore whether the suggestions made by this Court are acceptable to all stakeholders and take the issue forward, as expeditiously as possible.

Justice Parthiban made these observations while setting aside a trial court order which sentenced an 18-year-old boy of being in a relationship with a minor girl (17-year-old) and kidnapping her on June 28, 2014 and thereafter committed sexual assault on her on many occasions.

He held that the clear deposition of the victim girl that except knowing the accused being a student of the same school, she had no other relationship with him, and the accused had not kidnapped her, cannot be fully brushed aside.

“In this case, the trial court has erred in drawing presumption without any material whatsoever in support of such presumption. Overall, the conclusion by the trial court is totally flawed and the findings of the trial court are unsustainable and cannot be countenanced both in law and on facts and therefore, the appellant is entitled for acquittal,” Justice Parthiban added.