JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA
VOL. 21, 2022
This case was in response to a complaint from the father of a 17-year-old girl against her
20-year-old partner. The girl said in court that the actions were mutual and that she had
married the defendant after turning 18. A child born to the couple after their marriage was
legally recognised. The High Court, while quashing the complaint against the accused,
observed that several Courts have closed proceedings against such accused, who get married
to the prosecutrix during the pendency of the trial. The court further opined, “In the light of
the marriage between the prosecutrix and the accused; a certificate being issued per law depicting
the couple to be a legally wedded husband and wife; a girl child being born from the wedlock to
which a birth certificate issued by the Competent Authority being placed on record. In such cases, the
prosecution can hardly prove the guilt against the petitioner. If the victim is going to turn hostile in
a trial at a later point in time and the petitioner gets acquitted of all the offences, the sword of crime
would have torn the soul of the accused.”
Unfortunately, POSCO Act ‘does not distinguish between rape and consensual sexual
interactions’. The mandatory reporting cases have led to High Courts often exercising
extraordinary powers to quash cases to protect the family and the child. There are high rates
of acquittals in such cases as the girls turn hostile in courts, as the act was done by mutual
consent. The age of sexual consent and the blanket criminalisation of adolescent boys and
girls has not taken into account field realities. These cases also increase the burden on the
courts and the enforcement system.
The victims and witnesses under POCSO also are left unprotected while waiting outside the
courtrooms, while travelling back and forth to the courts. The administrative and service
staff are not sensitised.
It is clear that the POCSO Act enacted for preventing child abuse have inflicted considerable
unintended harm and trauma on young persons, for whose protection they were enacted.
Law reform is necessary for purposes of reducing the ambit of criminalisation.
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