Minors Consensual Sex Is A Gray Area in POCSO Act: Bombay HC

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On Thursday, the Bombay High Court noted that the passage of the POCSO Act was a significant and progressive step in protecting the Children’s rights. However, cases of consensual sex involving minors have become a gray area under the law since the consent of the minor is not legitimate in the eyes of the law. 

The observation came from Justice Sandeep K. Shinde while granting bail to a 19-year-old boy convicted under sections 4 and 6 of the POCSO Act for repeated rape of his minor cousin, along with sections 376(2)(n) and 354 of the Indian Penal Code, 1860. 

The events date back to September 2017, when the survivor was in her eighth standard and had been staying in the accused’s house (her paternal uncle’s son) for 2 years.

Although reviewing the relevant details of the case, the bench acknowledged that during the investigation, the victim under her Section 164 Cr.P.C. “it was a consensual act, not once but at least 4-5 times.” the declaration revealed. 

“I am mindful of the fact that the passage of POCSO was a vital and progressive step in protecting the rights of children and advancing the cause of child safety from sexual assault. The law’s letter and spirit, which describes a child as someone under the age of 18, It is to shield kids from sexual assault.

I am not aware of the fact that consensual sex between minors has been in a legal grey area because consensual sex between minors has been in a legal grey area in the eyes of the constitution, the consent granted by the minor is not considered a true consent. 

Despite this, the Court granted the defendant bail by stating that after the victim returned to her statement and further disowned the contents of her claims under section 164, the defendant is entitled to be granted bail. In addition, the bench acknowledged that the opinion of the psychiatrist who determined the sexual harassment was subject to the FSL report, which was not received until the end of the trial in the present case.

The bench also took note of the circumstances concerning the case that the details of the case are distinctive contributions to the survivor being the accused’s first cousin with both being at the relevant time aged 15 and 19 years and cannot be ignored at the same time. The Court then issued bail to the defendant for the enforcement of a personal bond of Rs. 25,000 with one or two promises of the same number.

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‘Law is not law if it violates the principles of eternal Justice’ very beautifully penned down by Lydia Maria Child and I strongly believe, if the law is not made for the goods of people then at least it should not violate the essence of the principle of law that is “JUSTICE”. Law is made to keep each section of society on an equal platform and being a member of the law fraternity, I will try to contribute to the welfare of society. I am Purnima and I graduated from zoology (Hons) and am currently pursuing a law degree from Lloyd law college, Greater Noida. My desire is to bring a fair and unjust environment to our society through my hard work and persistent efforts.