HC suggests exclusion of consensual sex after 16 years

Observing that relationship between a girl under 18 years of age and a teenage boy or little over the teenage years cannot be construed as "alien" or "unnatural", the Madras High Court suggested exclusion of consensual sex after 16 years of age from the purview of POCSO Act.

Justice V Pathiban gave the suggestion on Friday during the hearing of a petition by Sabari who challenged his conviction and 10-year sentence by a Mahila court in Namakkal under the Protection of Children from Sexual Offences (POCSO) Act.

The petitioner was accused of kidnapping and sexually assaulting a 17-year old girl.

Suggesting amendments to the Act, the judge said, "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 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," he said.

Justice Pathiban also directed the State Commission for Protection of Child Rights (SCPCRs), Commissioner of Social Defense, Department of Social Welfare and Noon Meal Programme to place the matter before competent authority and take steps to explore whether the suggestions are acceptable to all stakeholders.

Perusing various reports of the DGP, SCPCRs among others, he said though under Section 2(d) of the Act, 'child' is defined as a person below 18 years of age and in case of any love affair between a girl and a boy, where the girl happens to be 16 or 17 years old, the relationship invariably assumes penal character by subjecting the boy to the rigours of the law.

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 7 or 10 years as minimum imprisonment, as the case may be, he noted.

"... Such a relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes," the judge added.

Earlier, the judge acquitted the accused of all charges and set aside the conviction of the trial court.

He found fault with the lower court for completely misdirecting itself by raising unwarranted presumption without any basis in favour of the prosecution.

The court also expressed concern over the growing incidence of offences under the POCSO Act on one side and the rigorous imprisonment envisaged in it.