Man, 20, charged under Pocso, moves HC to challenge law
The plea challenged a trial court order by which charges were framed against the 21-year-old man, contending that his partner (then 17 years old) voluntarily left her house and went to a friend’s house
The Delhi high court on Tuesday sought the response of the Union and the Delhi government on the plea of a 21-year-old man, charged under the Prevention of Children from Sexual Offences (Pocso) Act for entering a consensual sexual relationship with a minor, to seek recognition of the consent of teens aged 16-18.
Presently, the consent of a minor is invalid, and if the family members of a minor register a complaint of sexual assault against someone, then the Pocso Act is automatically added to the FIR along with other relevant sections of the Indian Penal Code, even if the couple is in a consensual relationship.
The issue recently attracted attention following the remarks of Chief Justice of India DY Chandrachud who called upon the legislature to address concerns related to the age of consent under the Pocso Act, which criminalises consensual sexual activity even in “romantic” relationships for those under the age of 18.
On December 11, 2022, speaking at the inauguration of a two-day national consultation on the Pocso law, the CJI had commented that there is growing concern surrounding the issue which must be considered by the legislature in view of reliable research by experts in adolescent health care.
On Tuesday, a bench of justices Mukta Gupta and Poonam A Bamba issued a notice to the authorities on the plea which also challenged Section 2 (D) of the Pocso Act that lays down the definition of a “child” as anyone below the age of 18.
The plea, filed through advocate Akshay Tangri, challenged an order of the trial court by which charges were framed against the 21-year-old man under Pocso and other sections of the IPC, contending that his minor partner (then 17 years old) had voluntarily left her house on January 14, 2022 and gone to a friend’s house. On the same day, the girl’s maternal uncle approached the police and registered a missing complaint at a police station in Dabri, following which her posters were circulated in nearby areas.
The plea said on January 15, 2022, the girl left for Haridwar on her own, without informing anyone, after finding out that the man (then 20) was in Haridwar since January 13, 2022.
Later, the girl’s brother found the man in Haridwar and both of them searched for and found the girl. The brother then accompanied them back home and the girl went back to her parents.
While the girl in her statement to the magistrate under Section 164 of CrPC said she had left on her own accord, police still added Section 376 (rape) and relevant sections of the Pocso Act to the missing person FIR.
On September 13, 2022, the trial court framed charges against the petitioner, which were challenged by advocate Samrat Nigam, appearing for the petitioner, who contended that his client should be discharged as the sexual relationship between the couple was consensual.
The petition said that “living in denial to the realities of today, the law not only reprimands but also instils a fear in the mind of the adolescents towards any form of affection or sexual relations with the opposite sex”.
‘To incorporate this inevitable social phenomena and give legitimacy to Romeo-Juliet cases, a proviso to the offence penalised under the Pocso Act was included in a Bill recognising consent of children between the ages of 16-18 years and excluding them from the penalising ambit of the Pocso Act. However, the same was removed by a Parliamentary committee,” the plea said.
It also contended that not recognising consent of adolescents not only amounts to violation of Article 21, which gives a person the constitutional right to choose his/her partner and live with dignity, but is also violative of Article 14.
The matter will next be heard in April.