POCSO Act being misused against teenagers in consensual relationships: Allahabad High Court


Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The judicial system should aim to balance the protection of minors with the recognition of their autonomy in certain contexts, the Court stressed.

The Allahabad High Court recently observed that Protection of Children from Sexual Offences (POCSO) Act was being misused against teenagers in consensual romantic relationships [Satish Alias Chand vs State of UP and 3 Others].

Justice Krishan Pahal said that such cases require a nuanced approach and careful judicial consideration to ensure that justice is served appropriately. 

The challenge lies in distinguishing between genuine cases of exploitation and those involving consensual relationships, the Court said.

“This court has every now and then expressed concern regarding the application of the Protection of Children from Sexual Offences (POCSO) Act on adolescents. While the Act's primary objective is to protect children under the age of majority (18) from sexual exploitation, there are cases where it has been misused, particularly in consensual romantic relationships between teenage persons,” the Court said.

While addressing such cases, the Court said it was crucial to: 

- Assess the context: Each case should be evaluated on its individual facts and circumstances. The nature of the relationship and the intentions of both parties should be carefully examined.

- Consider victim's statement: The statement of the alleged victim should be given due consideration. If the relationship is consensual and based on mutual affection, this should be factored into decisions regarding bail and prosecution

- Avoid perversity of justice: Ignoring the consensual nature of a relationship can lead to unjust outcomes, such as wrongful imprisonment. The judicial system should aim to balance the protection of minors with the recognition of their autonomy in certain contexts. Here the age comes out to be an important factor.

- Judicial discretion: Courts should use their discretion wisely, ensuring that the application of POCSO does not inadvertently harm the very individuals it is meant to protect.

The Court made the observations while granting bail to an accused in a POCSO Act case.

The accused Satish alias Chand, who was arrested on January 5 this year, had allegedly “enticed away” the informant’s minor daughter in June 2023.

Seeking bail, Satish’s counsel told the Court that he has been falsely implicated in the case as the victim was a consenting party as per her own statement. It was also submitted that she was 18 years old.

The Court was further told that the accused and victim were in love with each other and out of fear of their parents, they had eloped and solemnised their marriage at a temple. 

It was also revealed that the victim was pregnant by six months at that time and has now given birth to a child. The counsel representing the accused told the Court that he proposes to raise the child as he is the father and is also willing to keep his married wife with him.

The Court at the outset noted that the victim's age was 18 years as per the ossification test. 

The State has not shown exceptional circumstances to warrant denial of bail to the accused, the Court said.

“It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State," the single-judge stated.

In view of the same, the Court allowed the bail application of the accused subject to the condition that the accused will take care of the victim and their child.

“The applicant shall deposit (fixed deposit) a sum of ₹2,00,000 in the name of new born child of the victim till her attaining the age of majority within a period of six months from the date of release from jail,” the Court further directed.