‘Child’ must be below 16 years, not 18 years, says Madras high court

Chennai: Pointing out the report of the State Commission for Protection of Child Rights that majority of cases registered under Protection of Children from Sexual Offences (Pocso) Act, are due to relationship between adolescent boys and girls, the Madras high court has suggested that the definition of ‘Child’ under the Pocso Act be redefined as 16 years instead of 18.

Justice V. Parthiban made the suggestion while setting aside an order of a trial court convicting and sentencing an accused to 10 years RI in a case relating to alleged sexual assault on a minor girl.

The judge said this court is of the view that as per the State Commission for Protection of Child Rights report, majority of cases are due to relationship between adolescent boys and girls.

Though under section 2 (d) of the Act, ‘Child’ is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigorous of Pocso Act.

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 to 7 years or 10 years as minimum imprisonment, as the case may be, the judge pointed out.

The judge said when the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction.

Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But, in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the Pocso Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of Pocso Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.

“Therefore, on a profound consideration of the ground realities, the definition of 'Child' under section 2 (d) of the Pocso Act can be redefined as 16 instead of 18”, the judge added. 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 and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years.

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, the judge added.

The judge said in this regard, the authorities were directed to place the decision before the competent authority and initiate appropriate steps to explore whether the suggestions made by this court were acceptable to all stakeholders. The authorities were directed therefore to take the issue forward as they deem fit, as expeditiously as possible, the judge added.