Object behind POCSO Act will be defeated if offence is condoned due to romantic relationships or subsequent marriage: Madras High Court

Justice P. Velmurugan said the offence under the POCSO Act should be considered as an offence committed against the society and not just against an individual. 

The Madras High Court on Tuesday held that the object behind the enactment of Protection of Children from Sexual Offences (POCSO) Act, 2010, would get defeated if a 22-year-old was left unpunished, for having had sexual intercourse with a 17-year-old girl, by citing either a romantic relationship between them or that they had got married after the victim completed 18 years of age.

Justice P. Velmurugan said the offence under the POCSO Act should be considered as an offence committed against the society and not just against an individual. “Hence, the subsequent marriage between the accused and the victim will not take away the offence committed by the accused when the victim girl was a child (defined to be any person below the age of 18 years under POCSO Act),” he said.

The judge also went on to state: “If the defence of subsequent marriage or that of elopement (when the victim girl was a minor) is accepted, then the purpose of enactment of the POCSO Act would get defeated. In case this proposition is accepted, in my opinion, it will lead to disastrous consequences.”

The observations were made while reversing the acquittal of a 22-year-old youngster from the provisions of the POCSO Act and instead, convicting and sentencing him to 10 years of imprisonment for having had sexual intercourse with a 17-year-old girl whom he had subsequently married, after she attained majority, during the course of trial.

Taking the mitigating circumstance of the victim now being pregnant, the judge imposed the minimum punishment of 10 years of sentence on her husband, though the Act prescribes a maximum punishment of life imprisonment, and also imposed a minimum fine of ₹1,000 with a default sentence of six months. “This court has no authority to give punishment less than the minimum sentence provided under the Act,” he said.

The orders were passed on a State appeal preferred by the Wellington police in the Nilgiris district against the acquittal of the accused from the charge under the POCSO Act by a Mahila Court in Udhagamandalam on November 30, 2022. He dismissed another appeal filed by the accused challenging his conviction by the trial court for the charges of kidnapping and wrongful confinement.

Read also: Why has the Supreme Court clarified POCSO provisions? 

Instead, taking the child victim along with him to his aunt and uncle’s residences at Mysore and having had sexual intercourse with her would squarely attract the offence under POCSO Act, he said. The defence of elopement or consensual sex could not be taken in cases where the victim was a minor, he added.

Justice Velmurugan also said the victim as well as her parents had turned hostile before the trial court because she had got married to the accused. However, in her initial statement to the police in December 2020, the victim had clearly stated about the sexual intercourse and even in her statement before a judicial magistrate, the victim had admitted “to have been together” with the accused at his relatives’ residences.

Read also: “In the statement recorded before the magistrate under Section 164 of the Code of Criminal Procedure, she had not used the exact word that they had physical relationship, however in a diplomatic manner the victim had used the language that ‘they were together’ during their stay in Mysore,” the judge said and opined that it could have been because the statement was recorded by a male magistrate.