Navigating Adolescent Romance vis-à-vis POCSO Act

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was introduced with the objective of regulating sexual offences against children. The legislation defines a ‘child’ to mean any person below the age of 18 years thereby criminalizing all kinds of sexual acts in relation to it. ² It is interesting to note that, while the draft bill was being prepared, consensual sexual activity between adolescents above 16 years of age was recognised. However, such recognition was not made part of the POCSO Act. ³ The Bill was modified and made to be an Act without any scope for adolescent sexuality.

Consensual Adolescent Relationships vis-a-vis the POCSO Act

A significant number of adolescents are involved in adolescent romance. ⁴ Several of them also leave their homes to be with their romantic partners. ⁵ ‘Adolescent romance’ in light of the present discussion signifies the following:

1. 1. The aggrieved party and the accused have been in love with each other, and/or
2. 2. Have been involved in consensual sexual activity, and/or
3. 3. Have willingly been married to each other. ⁶

It is ideal to note that prior to the POCSO Act, the Indian Penal Code 1860 was referred to in order to determine the age of consent. Previously fixed at 16 years for unmarried females and 15 years for married females, ⁷ the POCSO Act raised the bar to 18 years. ⁸ The change in age of consent was also cemented by the Supreme Court in 2017, when an exception to rape in the Indian Penal Code was read down to make marital rape with underage wife an offence. ⁹

Courts on Adolescent Romance

Although a significant number of adolescents are involved in consensual sexual relationships, ¹⁰ the POCSO Act does not recognise them. Thus, courts across India have found it difficult to consider the ‘consent’ of a minor as a valid element in the eyes of law. The uncertainty has led to ambiguity in determining the culpability of the accused under the POCSO Act, as has been seen in several cases which are discussed below.

It is noteworthy to mention the opinion of the Madras High Court in a POCSO case that a considerable amount of POCSO cases were about adolescents aged between 16-18 years of age. Such adolescent relationships, therefore, cannot be subjected to “unnatural or alien to between relationship of opposite sexes”. ¹¹ Although adolescent relationship would be the consequence of mutual innocence and biological desire, it is always unclear how a relationship between a girl under the age of eighteen and a male who is in or near the teen years might be described. This is the challenge before the court of law as has been recognised by the Kerala High Court. ¹²

The Supreme Court of India when faced with the questionof whether an adolescent boy entering into a relationship with a girl less than 18 years of age be punished under the POCSO Act for the offence of sexual assault, ¹³ upheld the objective of the Act, had granted interim protection to the adolescent.

In a noteworthy incident, the Kerala High Court identified the relationship between a 17-year-old and a 20-year-old boy to be consensual and the relationship was not considered to be an offence under the POCSO Act. ¹⁴ The Bombay High Court has also reaffirmed the consensual relationship between adolescents where the prosecutrix and the accused had left their families to get married and were living happily with each other. In such instances, the Bombay High Court observed, the accused could not be said to have taken undue advantage of the prosecutrix. ¹⁵

It is ideal to mention that the legislative intent behind the POCSO Act is to protect children from any form of sexual abuse and not the criminalisation of consensual romantic relationships of young adults.

The Road Ahead for the POCSO Act in Relation to Adolescent Relationships

Discussion on the age of consent is nothing new. One of the ideal ways to navigate between adolescent romance and the POCSO Act is for the law to recognise and acknowledge romantic relationships between adolescents, while still retaining the original intent to protect children from sexual offences. By doing so, the decision of the Apex Court as well as the legislative intent behind the POCSO Act shall remain balanced. Such balance requires certain considerations by the courts, namely:

1. The adolescent relationship that appears before it in a dispute, must be consensual. This consideration is significant to decide the fate of the case.
2. The parties to such cases must be within a defined age bracket (for example, 16-18 years).
3. Courts must gauge whether the aggrieved party has unequivocally agreed to be involved in romantic relationship with the other party or not.

As can be inferred from the judicial review of the courts on adolescent romance matters, courts have to decide each matter with careful consideration. Even though, currently there lies no straight-jacket formula for dealing with adolescent relationships under the POCSO Act, courts have shown themselves to be open to change, if the law so permits.

Conclusion

Acceptance of contemporary realities of youth in terms of romantic relationships and sexual activities is the only way for the POCSO Act to function. Laws have always evolved with the society in order to remain efficient to cater to social needs. Law on adolescent romance also needs to evolve with the changing society. The law can be amended to allow people of certain age and above to have autonomy over their sexual dispositions without having to subject themselves or their partners to criminal repercussions.

Oishika Banerji ¹