Bombay High Court raises issue of consensual sex among minors.
The Bombay High Court recently granted bail to a 19-year-old youth and suspended his 10-year-old sentence for raping his minor cousin. In its order, the court said, “Incidents of consensual sex between minors has been a grey area under the law as minor’s consent is not valid in the eyes of law under Protection of Children from Sexual Offence Act (POCSO)”.
In September 2017, the minor was living in her paternal uncle’s house. She is reported to have told a friend that her cousin had touched her inappropriately and that her stomach hurts. The friend told their class teacher who inquired about the same from the victim and she told the teacher about being sexually harassed by the male cousin and described when, how and where she was subjected to penetrative assault by one of her cousins. The ordeal was then described to the school principal after which a FIR was registered against the boy under section 376 (2) (n) and 354 of the Indian Penal Code, along with sections 3, 4, 5 and 6 of the POCSO. After the trial he was sentenced to suffer 10 years rigorous imprisonment.
However, Justice S.S. Shinde noted that, “In the case at hand, facts are distinctive in the sense, victim is first cousin sister of the appellant. At the relevant time, she was a 15-year-old and appellant was 19. Both were students and living in one house. A fact cannot be overlooked that the victim had resiled from her statement under Section 164 — recording of confessions and statements of the Code of the Criminal Procedure. Even her mother was unfriendly to prosecution. Opinions of doctor that victim was subjected to sexual assault was subject to Forensic Science Laboratory report was not obtained till the conclusion of the trial”.
The court suspended his sentence and recorded, “Victim said, her statement to the police and narrative in statement under Section 164 was at the instance of the class teacher. Therefore, in the proceedings, wherein suspension of sentence is sought, this Court cannot ignore the ‘evidence of victim’ and ‘her mother’. At the same time, the age of the victim and of appellant their relations also cannot be overlooked.”
While granting bail to the youth, the Bench held, “I am conscious of the fact that the passing of POCSO has been significant and a progressive step in securing children’s rights and furthering the cause of protecting children against sexual abuse. The letter and spirit of the law, which defines a child as anyone less than 18 years of age, is to protect children from sexual abuse. I am also conscious of the fact that consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be a valid consent in eyes of law,” the court remarked.