The Bombay High Court has observed that the criminalisation of romantic relationships under the Protection of Children from Sexual Offences Act has overburdened the justice system, Bar and Bench reported on Friday.
Justice Bharati Dangre made the remark while acquitting a man accused of having raped a girl in 2016. At the time of the alleged crime, the man was 25 years old and the girl was 17 years and 5 months old. The girl had said that they were in a consensual relationship.
A trial court had in February 2019 held the man guilty under the POCSO Act and sentenced the man to ten years’ rigorous imprisonment. On July 10, the High Court set aside the order.
Justice Dangre said that while children need to be protected from sexual violence, they should be able to exercise their choices without being exposed to harm and danger.
The judge said that on account of the POCSO Act, a 20-year-old man could be held guilty for engaging in consensual sex with a girl aged 17 years and 364 days. She added that a penal approach towards adolescent sexuality has reduced their access to sexual and reproductive health services, according to Bar and Bench.
“The criminalisation of romantic relationship has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system and ultimately when the victim turns hostile by not supporting the charge against the accused, in the wake of the romantic relationship she shared with him, it can only result in an acquittal,” the court said.
The High Court said that the age of consent has to be distinguished from the legal age of marriage, as sexual acts do not take place only within marriage. It said that the judicial system as well as society at large should take note of this fact.
Justice Dangre said that a man could not be convicted for what was clearly a consensual act, merely because the girl has not completed 18 years of age. She said that the provision of the POCSO Act under which he was accused “does not take into consideration our social realities”.
The judge said that the Madhya Pradesh High Court had also recently expressed similar concerns about the Act. She said that the Parliament should take note of such cases and deliberate on the subject.