Bombay High Court: In a challenge by the accused (‘appellant’) was convicted for offences under Sections 363, 376, 107 and 109 of the Penal Code, 1860 (‘IPC’) and Sections 4, 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) by judgment and order dated 21-02-2019, Bharati Dangre, J. reversed the conviction since the girl aged 17.5 years consensually indulged in sexual relationship with the accused.
The prosecutrix went missing on 29-01-2016 when all the family members went out of city for the last rites of her grandmother. Her brother had come to know about her affair with the accused, and thus, lodged a complaint for his missing sister expressing suspicion against the accused having knowledge of their love affair. A First Information Report (‘FIR’) was lodged on 1-02-2016, and the prosecutrix was traced out with the accused in Gujarat on 18-03-2016 and both were brought to a police station. Her School Leaving Certificate revealed her date of birth as 5-09-1998. During medical examination, the prosecutrix disclosed of having penovaginal sexual intercourse multiple times with the accused without force and with her consent out of love relationship of almost 2 years.
The prosecutrix was carrying a pregnancy of 14.6 weeks which was aborted with the consent of her father on 22-03-2016. The accused faced charges of kidnapping, committing rape on her from 30-01-2016 to 18-03-2016 and offences under Sections 3 and 4 of POCSO Act. Two other persons were also charge sheeted for abetting the offence.
As mentioned in the cross-examination, she wrote two letters addressed to Dongri Police Station during her stay with the accused stating that she was a Muslim by religion, and an adult as per Muslim Personal law and capable of performing Nikah as per Islamic Shariyat Law. On 6-09-2014, her Nikah was performed with consent with the accused since she loved him for many years and decided to live with him.
Court’s Analysis of Love Affair and Consensual Sex
The Court noted that the prosecutrix specifically narrated in the letter that the accused’s family was lower in financial status because of which, her father was against the performance of marriage, though the accused belonged to the same caste and religion. When her father came to know that she had married the accused, he even pressurized her to obtain divorce. She had further narrated of being abducted by her father and kept in CCTV surveillance in the house wherein, she was emotionally blackmailed to separate from her legally wedded husband, whom she married on her own will. She also mentioned that her father had filed a false complaint against her husband to pressurize her to divorce him. In the said letter, she had also stated that she had conceived from her husband and was apprehensive that her father would not permit her to reside with her husband and requested police authority not to take cognizance of any complaint filed by her father.
The Court noted that the prosecutrix had a love relationship with the accused whom she left with taking advantage of the absence of family members and accompanied him as a wife in different cities for over a month, visited dentist, took treatment for pregnancy, all indicating her free will to stay with the accused without contacting her family members.
Age Limit under POCSO Act
The Court targeted the Special Judge’s finding of accused being guilty of committing rape/penetrative sexual assault/aggravated penetrative sexual assault on the minor prosecutrix. The Court pointed that “All the while, i.e., while the accused established physical relationship with the prosecutrix and knowing very well that she had conceived from him, she made her choice of eloping with him, since she was apprehensive that her family members, including her father would not support the alliance.” It further highlighted that neither the evidence of Nikah was brought on record, nor the Kazi was brought to the witness box, and even the prosecutrix during her cross examination volunteered that there was no marriage between her and the accused. Thus, the Court refused to go into the question of performance of marriage between the two.
The Court further said that “An impression was given to her that he was already married, as an attempt to deter her from continuing the relationship with the accused, but nothing is brought on record corroborating the story that the accused was already married”, but she was never convinced on the said aspect and never asked for Nikahnama. Immediately after the accused was arrested and she was brought to her home, she terminated the pregnancy.
The Court expressed that “the prosecutrix was clear in her version and about her expectation from her own life, fully aware and ready for taking the consequences flowing from the relationship, she was maintaining with the accused, a man aged 25 years. In such a scenario, a question arises, when there is a consensual relationship maintained between the two and the prosecutrix never alleged that the physical relationship was maintained by the accused with her, without her consent or against her will, whether the conviction of the accused under Section 376 of IPC and Sections 4 and 6 of the POCSO Act is justiciable?”.
The Court perused the history of bringing POCSO Act into operation, the need for a special law to protect children under the age of 18 years against any kind of abuse. There is no scope of consent since consent to sexual intercourse by a girl below 18 years must be ignored, and the other party shall be guilty of offence under POCSO Act. According to the Court, such provision created a gray area resulting in criminalizing consensual adolescence/teenage relationship by raising the age of consent from 16 to 18 years.
The Court explained that “Sexual Autonomy encompasses both, the right to engage in wanted sexual activity and right to be protected from unwanted sexual aggression. Only when both aspects of adolescent’s rights are recognized, human sexual dignity can be considered to be fully respected.” While scrutinizing the age of consent, the Court observed that “Children in the age group of 14 are considered capable of giving consent to sex in countries like Germany, Italy, Portugal, Hungary etc. In London and Wales, the age of consent is 16. Among Asian countries, Japan has set the age of consent as 13, and 16 in Bangladesh and Srilanka.”
The Court pointed that personal interaction with the victim and her statements confirmed consensual relationship with the accused, but the rigors of POCSO Act did not permit quashing of proceedings because any kind of sexual indulgence with a minor fell within the ambit of Sections 4 and 6 of POCSO Act.
The Court referred to the dilemma faced by various High Court judges in similar cases like Sabari v. Inspector of Police, 2019 SCC OnLine Mad 18850; Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470; State of Karnataka v. Basavraj, 2022 SCC OnLine Kar 1608, and the recent instance when MPHC urged Centre to decrease age of consent from 18 to 16 years. The Court expressed concern that “in the cases of the teenagers, who fall for attraction of the opposite sex and enter into a sexual relationship, out of impulsiveness, only one has to take the consequences, on being charged for committing an offence of rape, though the other had also indulged into the same act.” and “Despite a clear stand being taken by a female in such an act, that it was a case of consensual sex, the other part i.e. the male stand convicted under the POCSO Act with a specific reasoning, being supporting that POCSO Act was never intended to include consensual sex with the minor.”
The Court referred to the General Comment No. 20 by United Nations Committee of Rights of Child which recommended that “States should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.” It further explained that “The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect.”
The Court refused to concur with the Special Judge on convicting the accused for rape while the girl aged 17 years and 5-6 months had complete understanding of the acts she consensually indulged in, merely on the ground that she was a minor. The Court set aside the judgment passed by Special Judge and acquitted the accused of charges levelled against him.
[XYZ v. State of Maharashtra, 2023 SCC OnLine Bom 1390, decided on 10-07-2023]
Judgment by: Justice Bharati Dangre
Advocates who appeared in this case :
For Appellant: Advocate Murtaza Najmi, Advocate Farida Murtaza Najmi, Advocate Davinder Sabharwal, Advocate Siddhi Ghogale, Advocate Sulbha Chakranarayan, Advocate Aqsa Tajuddin;
For Respondents: Additional Public Prosecutor S.R Agarkar, Advocate Sonali Sable, Advocate Macchindra Bodke.