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HC acquits Bengal man sentenced to 20 yrs for raping minor girl he married
The two-judge bench of the Calcutta high court ruled that this was a case of non-exploitative consensual sexual relationship between a minor girl and an older adolescent
KOLKATA: The Calcutta high court on Wednesday acquitted a 21-year-old Bengal man sentenced to 20 years in prison under the Protection of Children from Sexual Offences (Pocso) Act for the rape of the minor girl he married in 2018.
The rape and kidnapping case was filed against the man in May 2018 by the girl’s mother when she - the girl was then 14 - left her house and started living with the accused. The two got married in 2019 and became parents in May 2021 when the girl was a little over 17 years old and the accused, was 19.
“We find that this is a case of non-exploitative consensual sexual relationship between a minor girl and an older adolescent, or maybe a young adult. There is nothing on record to prove the factum of kidnapping by the appellant. No evidence has been led to that effect by the prosecution rather the victim has testified that she voluntarily walked into the house of her lover and married him,” the bench of justices Partha Sarathi Sen and Chitta Ranjan Dash said in their 29-page-verdict.
The man had been in prison after the sessions judge delivered the jail term, noting that it did not have any inherent powers under the criminal procedure code and could not take a different view beyond the evidence on record that proved the rape charge.
The high court invoked its powers under Article 226 of the constitution to set aside the conviction and order of sentence noting that its decision “not be a precedent to be followed by the trial courts of the State”.
The bench, which noted several high courts taking a liberal view in cases of consensual adolescent sex, said the early draft of the Pocso Bill recognised the possibility of consensual sexual activity involving adolescents above 16 years as well as the grounds on the basis of which such consent would be vitiated. But this provision was removed following recommendations of the parliamentary standing committee and the law passed “without any regard for adolescent sexuality”.
“In 2013, despite the recommendations by the Justice Verma Committee that the age of consent be reduced to 16 years, Section 375, IPC was amended and the age of consent was increased to 18 years,” the bench said.
“Since the 19th century, age of consent laws have been marked by shifts in the understanding of childhood, adolescence and adulthood, fuelled by developments in women’s and child rights discourse, as well as multiple socio-cultural and political factors. The legislative provisions have been reflective of a colonial and patriarchal understanding of females as properties of their father or their husband,” the bench said.
“……experience show that a vast number of adolescents are sexually active and there are a significant number of ‘consensual’ sexual relations among adolescents and between older adolescents and adults. As per NFHS-5 (2019-21), for instance, 39% of women had sex for the first time before they attained 18 years The legislation (POCSO Act), however, does not consider the possibility of consent to non-exploitative sexual activities by adolescents,” the judgment said.
“The Pocso Act lumps all persons below 18 years together without consideration for their developing sexuality, evolving capacity, and the impact of such criminalisation on their best interests. It fails to strike an effective balance between protecting adolescents against sexual abuse and recognising their normative sexual behaviour,” the verdict said.
“These cases attract statutory rape charges under the IPC 376(3), 376(2)(n) and other provisions and the Pocso Act, especially when adolescent girls elope with their partners or get pregnant. There is a possibility that the actual proportion of romantic and consensual cases under the Pocso Act is much higher a crime in India,” the order said.
“We are therefore in view that the balance between protection and evolving autonomy is central to ensure best interests of adolescents, but the current legal framework fails to do so and unjustly conflates normative consensual acts among adolescents with sexual abuse. Instead of protecting adolescents from abuse, the law exposes those in factually consensual and non-exploitative relationship to the risk of a criminal prosecution and compromises the child protection mandate,” the judges said.
The judgment also advised adolescent people to restrain their sexual instincts and stressed on the crucial role that parents and teachers had to play.
“It is the duty/obligation of every female adolescent to protect her right to integrity of her body, protect her dignity and self-worth, thrive for overall development of her self-transcending gender barriers, control sexual urge as in the eyes of the society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes,” the bench said.
“It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self-worth, her dignity and privacy, and right to autonomy of her body. For the aforesaid purpose charity should begin at home and the parents should be the first teachers,” it added.
