calcutta high court

Calcutta High Court: In an appeal against conviction under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) where the question of criminalization of consensual relationships between older adolescents and the need for legal reform to address the evolving understanding of adolescent sexuality was raised, a Division bench comprising of Partha Sarathi Sen* and Chitta Ranjan Dash, JJ., quashed the appellant’s conviction under the POCSO Act and the IPC due to the unique circumstances of the case, including the consensual nature of the relationship and the subsequent birth of a child.

The Court also highlighted the need for a balanced approach in dealing with consensual sexual relationships among adolescents. The Court called for comprehensive sexual education and policy reforms to safeguard the rights and interests of adolescents, emphasizing a rights-based approach to adolescence while maintaining the legal framework.

“Instead of protecting adolescents from abuse, the law exposes those in factually consensual and non-exploitative relationship to the risk of a criminal prosecution and compromises the child protection mandate.”

Brief Facts

In the instant matter, the present appeal aroused from a judgment and sentence, passed by the Special Judge, South 24 Parganas, West Bengal, convicting the appellant under Sections 363 and 366 of the Indian Penal Code, 1860 (IPC) and Section 6 of the POCSO Act. The appellant was sentenced to rigorous imprisonment for 20 years and fined Rs.10,000/- under Section 6 of the POCSO Act, with a default sentence of an additional 2 months of rigorous imprisonment. Separate sentences were awarded under Sections 363 and 366 of the IPC, with the direction that these sentences run concurrently.

During the proceedings, the court noticed a woman with a baby who appeared to be in distress. This woman was later identified as the victim of the alleged crime. She stated that she had received a notice from the court and was unable to afford legal representation. The court engaged an Amicus Curiae to assist her, granted bail to the appellant, and adjourned the appeal for a later date. The victim revealed that she had a romantic relationship with the appellant, married him, and had a child. She explained that her husband had been in jail since his arrest, and her family had severed ties with her after her marriage. She also mentioned her mother-in-law’s illness and the challenges of supporting her family.

Prosecution and Defence Case

The prosecution’s case, as outlined in the First Information Report (FIR), indicated that the victim went missing from her home in May 2018. It was alleged that the appellant, with the assistance of the victim’s sister and her mother-in-law, enticed the minor victim away for malicious purposes. The FIR was filed in May 2018, and the subsequent investigation led to charges against the appellant under various sections of the IPC and the POCSO Act.

The defence plea essentially admitted the marriage and the birth of the child but denied the kidnapping charges.

Parties’ Contentions

The appellant contended that the appellant, being a rustic person, was unaware that his marriage to the victim constituted an offense. It was contended that the appellant and the victim had a consensual relationship, married, and had a child together. There was no allegation of the appellant exploiting the victim’s emotions.

The State contended that ignorance of the law is not an excuse. It was argued that the appellant had committed a serious offense against a minor, and the judgment under appeal should be affirmed.

The victim’s supported the appellant’s argument, emphasizing the need to save the victim from destitution and the family from poverty.

Court’s Observation

The Court discussed the issue of consensual romantic relationships between older adolescents and the criminalization of such relationships under the POCSO Act and stated that “the lack of recognition of consensual sexual behaviour of older adolescents has resulted in their automatic criminalisation, as well as a conflation of consensual acts with non-consensual acts.” The Court observed that considering the changing realities of adolescent sexuality and the absence of recognition for consensual sexual acts among older adolescents.

The Court highlighted the historical evolution of age of consent laws in India, raising the age of consent from 10 years in the 19th century to 18 years under the POCSO Act and the conflation of consensual acts with non-consensual ones under the current legal framework. The Court observed that there is a need to distinguish between consensual sexual acts and rape, considering the biological development and curiosity of adolescents.

“All persons, including children, are entitled to the right to dignity and privacy and these rights also apply in the context of their personal relationships.”1

The Court emphasized that the law disproportionately affects adolescents in consensual relationships, undermining their bodily integrity and dignity and there is need for respecting the rights and dignity of adolescents in the context of their personal relationships.

“By equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents.”

The Court acknowledged the negative consequences of criminalizing consensual sexual relationships among adolescents, including the stigmatization, disruption of development, and impact on education, employment, self-esteem, social reputation, and family life. The Court observed that the law, in its current form, was not effectively balanced between protecting adolescents from abuse and recognizing normative sexual behavior.

The Court referenced to in Teddy Bear Clinic for Abused Children v. Minister of Justice & Constitutional Development, (CCT 12/13) (2013) ZACC 35, by the Constitutional Court of South Africa that recognized the harm caused by such criminalization and the degradation of adolescents’ self-worth.

“If one’s consensual sexual choices are not respected by society, but are criminalised, one’s innate sense of self-worth will inevitably be diminished.” Further, “the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades and inflicts a state of disgrace on adolescents.”

The Court emphasized the need for a “rights-based approach” in dealing with “captioned group” i.e., adolescents aged 16 to 18 engaged in romantic relationships and before extending the rights certain criteria should be met.

“(i) Whether conferment of suggested Rights on the “captioned group” is/are in their best interest?

(ii) Whether the captioned group has the discretion and maturity to use that Rights for their best interest?

(iii) Whether such rights at such age is conducive for over all development of their personality or it is destructive of their self development?

(iv) Who are the persons on whom such Rights are to be conferred, are they disciplined adolescents or a wayward lot, who have no control on their trivial urge to have sex?

(v) Whether conferment of such Rights on the captioned group is in the best interest of the society?”

The Court called for comprehensive sexual education and policy reforms to ensure access to sexual and reproductive health services, integrated sexuality education in school curricula, and parental guidance.

The Court stated that legal amendments were necessary to decriminalize consensual sexual acts between adolescents above 16 years, while also ensuring protection for all children below 18 years from sexual offenses under the POCSO Act.

“The POCSO Act lumps all persons below 18 years together without consideration for their developing sexuality, evolving capacity, and the impact of such criminalisation on their best interests. It fails to strike an effective balance between protecting adolescents against sexual abuse and recognising their normative sexual behaviour. The result is that a law aimed at addressing child sexual abuse, is instead being used against adolescents, especially to curtail the sexual expressions of adolescent girls to safeguard family honour.”

The Court recognized its role in providing relief for individuals like the appellant and invoked its inherent jurisdiction to set aside the conviction. The Court further urged the trial courts to exercise discretion, especially regarding bail and anticipatory bail, in cases involving consensual adolescent relationships.

The Court observed that the relationship between the accused and the victim was consensual and non-exploitative. It found no evidence of kidnapping or coercion and noted that the victim voluntarily walked into the accused’s house to marry him.

The Court considered various aspects of the case, including economic and social conditions of the appellant and victim and exercised leniency in their case. The Court noted that the prosecution had failed to provide sufficient evidence to prove the kidnapping charges, therefore, the conviction under Section 6 of the POCSO Act and Sections 376(3) and 376(2)(n) of the IPC was not justified.

The Court held that ignorance of the law could not be considered an excuse in this case, emphasizing that the legal principle “ignorance of the law is no excuse” applied, regardless of the diversity and ignorance in the country.

Court’s Decision

The Court set aside the appellant’s convictions on the ground that there was insufficient evidence to sustain his convictions under Sections 363 and 366 of the IPC. Additionally, the Court exercised its inherent jurisdiction under Section 482 of the Criminal Procedure Code, 1973 (CrPC) and plenary power under Article 226 of the Constitution of India to set aside the appellant’s convictions under Section 6 of the POCSO Act, as well as Sections 376(3) and 376(2)(n) of the IPC.

[Probhat Purkait v. State of W.B., 2023 SCC OnLine Cal 3777, order dated 18-10-2023]

*Judgment by Justice Partha Sarathi Sen

Advocates who appeared in this case :

Mr. Malay Bhattacharyya, Mr. Subhrajyoti Ghosh, Mr. Dibakar Sardar, Counsel for the Appellant

Mr. P. K. Datta, ld. APP, Mr. Ashok Das, Mr. S. D. Roy, Counsel for the State

Mr. Shibaji Kumar Das, Mr. Soumyajit Das Mahapatra, Ms. Rupsa Sreemani, Ms. Madhuraj Sinha, Counsel for the Victim Girl

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1. Section 3(xi) of the JJ Act, 2015; Justice K.S. Puttaswamy v. Union of India, (2017) 10 13 SCC 1, Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

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