Can minor’s consent be considered in POCSO cases?

The Gujarat High Court sets aside conviction of rape under POCSO Act, as the minor girl and the convict were married and girl had borne 2 children

posco act

The Gujarat High Court has reversed the conviction in a case of rape of a 15-year-old minor girl, taking into consideration that the minor girl admittedly ran away from home and consented to the sexual acts. The bench of Justice Paresh Upadhyay observed that “Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.”

The appeal was filed against a judgement passed by Sessions Court Junagadh on July 15, convicting the appellant under section 376 (rape) of IPC as well as sections 4 (penetrative sexual assault), 6 (aggravated penetrative sexual assault), 8 (sexual assault) and 12 (sexual harassment) of the Protection of the Children from Sexual Offences (POCSO) Act. He was sentenced to 10 years of rigorous imprisonment and fined Rs. 5,000. 

The counsel for the appellant submitted that he, and the victim are husband and wife, and they have borne two children, a fact undisputed by either of them. He submitted that the conviction is unsustainable and the same be quashed and set aside.

The court considered certain facts:

  • The appellant and victim are in a relationship.
  • The victim, on her own, had walked out of home with the appellant.
  • The appellant and the victim stayed together since then at the house of the appellant, as husband and wife.
  • Out of their relationship, she has given birth to two children, one on June 29, 2019 and second on January 22, 2021.
  • The victim deposed before the court that the appellant has kept physical relation with her consent.

The court seemed perturbed by the fact that despite they have two children, and victim stating that physical relations were out of her consent, he has been convicted for rape. The court pointed out that the Sessions Court was also conscious of this fact that they are living together and thus any compensation / assistance received from any of the Government(s) need to be refunded.

The court was thus inclined to set aside the conviction order. The court said, “It is under these circumstances, this Court finds that the conviction recorded by the Sessions Court needs to be set aside. Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society.”

The order may be read here:

The legal standpoint

While the high court’s order failed to mention any legal points, it is important to look at where the law, especially the POCSO Act stands. The many questions that arise after the court’s verdict to set aside the conviction include, whether an adult male can have sexual relationships with a minor if she gives her consent? In that case is a minor’s consent valid in the eyes of law? Can the law make concessions and release a person who is an offender in the eyes of the law because there happens to be a relationship between them after the offence?

The minor girl was a little over 15 years old when the incident took place. Through this order, it is unclear how the crime was uncovered and who filed the complaint. Whether, the incident complained of was with the victim’s consent.

Nevertheless, first it is to be considered whether such consent is valid in the first place. If you search for the word “consent” in the entire POCSO Act, you will find it in only two places, and neither are relevant to the offences. In fact, in section 41 of the Act it is mentioned that it will not be considered to be an offence under POCSO if a medical examination is done on the minor with the consent of the parents. This means that the law would punish any medical examination that fits in the definition of offences under the Act, if they are carried out without the consent of the parent or guardian. In this case, would it be permissible to take into consideration the consent of the minor in case of an actual sexual act? Certainly, the law does not provide for the same. It would be to err on the side of the law, if an interpretation like such is made to equate a minor’s consent in sexual activity with the consent of an adult in sexual activity.

In fact, under the Contracts Act as well, a minor’s consent is considered to be invalid. In that case would a minor’s consent in such a grave situation be considered good and valid in the eyes of the law? The answer to that must be in the negative.

If the legislature intended to take into account the minor’s consent, it would have expressly stated so in the Act. Also, if the relationship between the minor and the offender were to be taken into account to determine whether he/she is guilty of the offence, the same would have been provided.

In the absence of either of these provisions under the POCSO Act, to acquit a man who has maintained sexual relationships with a 15 year old girl (who is now a 19 year old) where the minor girl claims that the relationship was consensual amounts to setting a wrong and dangerous precedent; not only because it is in contravention to the law but also because there could be cases where minor girls are coerced to admit consent before the court of law.

Thus, this verdict of the Gujarat High Court effectively acquitting the convict without providing any legal reasoning and merely on the ground that the girl and the children borne of their relationship would be stranded, could be seen by some as seemingly bad in law.


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