SHOULD ROMANTIC RELATIONSHIP BE MADE PUNISHABLE UNDER THE POCSO ACT?

By- Sachin Jeph, Student , NALSAR University of Law, Hyderabad.

Introduction:

Romantic relationships can be viewed as voluntary relationships between individuals who have intentions that each person will be a significant part of their ongoing lives. And nowadays, such kinds of relationships are a common occurrence. However, this very romantic relationship between adolescent teenagers, in a recent case[1], became the basis of its judgement. 

The Madras High Court's Take :

The Madras High Court on 29 Jan, 2021 heard a peculiar case, wherein a complaint was lodged against an adolescent boy of 20 years. The young man was accused of eloping with a girl and consummated the relationship. The complaint was filed under Section 482 of the Code of Criminal Procedure (CrPC) [2] involving charges levelled under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Prohibition of the Child Marriage Act, 2006. 

In this case, the court started off by saying that the provisions of the POCSO Act as it stands today will surely make the acts of the young man an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defence if the criminal case is taken to its logical end. 

However, the court by taking a maximalist approach and doing a purposive interpretation of the statute, opined that it was never the intention of the POCSO Act to punish an adolescent boy of 20 years as an offender for entering into a relationship with a minor girl. POCSO Act was not intended to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned. The Court further opined that during the age of hormonal and biological changes, the adolescent boys and girls should receive the support and guidance of their parents and such incidents should never be perceived from an adult’s point of view as such an understanding will lead to lack of empathy.

The court concluded its judgement by saying, “punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act”. 

Now the central question that arises, here, is, “Should Romantic relationship be made punishable under the POCSO act?” 

As it becomes apparent from the bare reading of the provisions of the POCSO Act, the Act does not recognize teen sexuality, and deems all sexual acts between persons below the age of 18 as criminal. Therefore, if an adolescent boy and a girl enter into a romantic relationship, no matter it is consensual, no matter this adolescent romance is an important developmental marker for adolescents’ self-identity, functioning and capacity for intimacy, this relationship will be hit by the provision of the POCSO act. The adolescent boy, as a result, will have to face the trial. It is to be noted that not only the boy but also the girl has to face the repercussions. 

The author here, totally agrees with observations that were made by the Madras High Court. He too believes that romantic relationship should be kept out of the ambit of the POCSO Act. If not, it could lead to irreparable damage to the livelihood of youth whose actions would have only been innocuous. 

Author's Opinion :

Apart from this, the author is of the opinion that there could be other myriad reasons for not applying the Act to the above-mentioned relationship. 

First and the foremost reason is that its vision was to control the increasing issues of child abuse and sexual assault on children. Never ever was it implemented to criminalize consensual sexuality or romantic relationships entered into between an adolescent boy and a girl. Had it been, the Act could have expressly stated it. Since it is not mentioned there, it would be unjust on our part to assume that romantic relationships purely based on love and consent, come within the ambit of this Act. 

Secondly, in such relationships, no one can be blamed. No one does a faulty act except entering into the relationship. Therefore, the question arises, “how can then a person be subjected to POCSO act when he lacks required intention?” The author believes that though the acts do have an intention but it is only naïve, harmless, innocent, impulsive. Romantic relationships are based on both compassionate and passionate love for each individual involved. On the top of it, consensual element is also present. If we are subjecting such relationships under the scanner of POCSO Act, then we are punishing an individual for doing a harmless act. 

Thirdly, given the nature of stringent punishment meted out to offenders, it would be really unjust if people engaging into consensual romantic relationship, are made to go through those stringent punishments. Since these relationships lack the required intention and are a result of harmless acts, the punishment meted out is not proportional to the act committed here. One cannot ignore the issue of proportionality here. Not only it will be unethical to subject the individual involved in a romantic relationship to such stringent punishments, but also, it will be disproportionate given the severity of the punishments mentioned under the POCSO Act. 

Conclusion:

Therefore, in the light of these arguments, the author is of the opinion that romantic relationship should not be made punishable under the POCSO act and necessary amendment should be carried out in the legislation to keep romantic relationships out of the ambit of POCSO act. 

References:

1. Vijayalakshmi v. State, MANU/TN/0254/2021
2. Section 482, Code of Criminal Procedure (CrPC), 1973.