The Supreme Court on Tuesday, March 30, 2021 has issued notice on a special leave petition which raises the issue that whether an adolescent boy, who enters into a relationship with a girl who is less than 18 years of age, can be punished for the offence of sexual assault under the Prevention of Children from Sexual Offences Act (POCSO), 2021.
The petition is preferred against an order of the Madras High Court in Maruthupandi v. State, holding that even if a minor girl falls in love and develops a consensual relationship with her partner, the provisions of POCSO Act will be attracted against the latter.
A division bench comprising Justices Indira Banerjee and Krishna Murari issued notice to the Tamil Nadu government on the SLP and protected the petitioner from any coercive action in the meantime.
The petition filed through Advocate Rahul Shyam Bhandari states :
"Punishing teenager having a consensual affair which later tums out to be sour for any reason cannot be considered as an objective of the Act and it would only defeat the object of the Act. The Act is silent on the aspect where two individuals though may be less than 18 years, enters into a consensual relationship and in the absence of this, certainly the application of law in the Act cannot be permitted to charge and punish individuals in such relations keeping the fact of changing societal needs. Such consensual incidents certainly cannot be seen from the nature of such stringent provisions of the POCSO Act"
The High Court was dealing with an application appeal filed by Maruthupandi against an order of conviction passed by the Magistrate under Section 5(l) read with Section 6 of the POCSO Act. During these proceedings, an application was moved for taking of additional evidence of the victim to the effect that both of them had been living together for the past four years and that their relationship was consensual. The application was ultimately dismissed. It must be noted at this juncture that at the time of alleged offence, both the victim and the accused were around 17 years of age. The petitioner has contended that there was no sexual assault or violence involved, and has termed it as a case of 'love affair going sour'. Madras HC Suggests To Exclude Consensual Sex With Girl Aged Above 16 From Rigours Of POCSO Act.
The judge had suggested that more liberal provision can be introduced in the Act itself in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. In this backdrop, the instant Petitioner has contended that the impugned order refusing to compound the offences alleged against him are against the decisions of two Coordinate Benches.
Additionally, The Petitioners has also referred to the Supreme Court's decision in S. Kasi v. State wherein it has been held that a coordinate bench must follow the decision of another coordinate bench and in case of ambiguity, should refer the issue to a larger bench. Stating, "a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so", the Petitioner contended that before taking a contrary view to decisions of two coordinate benches on the same point of law, the principles of consistency and Judicial Discipline should have borne in mind of the single judge. [READ ORDER]