Article by Neelakshi Bhaskar
(Student at Vivekananda Institute of Professional Studies, Delhi)
Children are the future of India and got protection under various laws implicitly or explicitly. The Protection of Children from Sexual Offences Act, 2012 (POCSO) is enacted with the main objective of protection of children from various kinds of sexual abuses and offences. Before POCSO Act, 2012, the cases of child sexual abuse were dealt with under the sections of the Indian Penal Code, 1860. While dealing with an important issue of “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” in the case of Vijayalakshmi and Another v. State Rep. by Inspector of Police and Another 2021 SCC OnLine Mad 317, the court has clarified the very essence of the POCSO Act, 2012. The present case is a rape matter under which the both accused and the victim eloped after being in a romantic affair and the court granted bail to the accused under Section 482 of Cr. P. C. With the help of other precedents laid down by the courts and analysis of the POCSO Act, 2012, the author has tried to draw a fair conclusion to the issue mentioned above.
Doli Incapax means the inability of a child to form a criminal intent to commit a crime. Children under the age of 7 years are considered as Doli Incapax and children from age 7 to 12 years are immune from criminal liability when it is proved that they are incapable of forming a criminal intent because of certain causes[i]. When the children above 12 years are capable enough to form criminal intent or engage in any criminal conspiracy then they should at least be given a chance to prove their good intentions in the matter of their romantic affairs.
“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” was observed by the Madras High Court in a recent case of Vijayalakshmi and Another v. State Rep. by the Inspector of Police and Another 2021 SCC OnLine Mad 317. The judgment pronounced by N. Anand Venkatesh, J. was based on the scientific and logical reasoning as to what teens experience and feel in their adolescent years and how is it relevant to take into consideration in the present case.
In the present case, one underage girl eloped with an adolescent boy, who she knew for a long time and was involved in a love affair with. The petition to quash the criminal proceedings against the boy i.e., accused u/s 366 of the Indian Penal Code, 1860, 6 of the Protection of Children from Sexual Offences Act, 2012, and 9 of the Prohibition of the Child Marriage Act, 2006 was filed by the Defacto complainant and the victim girl on the ground that the proceedings are causing mental agony to the petitioners and a hurdle in the way of victim’s family. The main issue in the case was "whether the court can quash the criminal proceedings involving non-compoundable offenses pending against the respondent". The issue of the same nature was dealt with by the Hon'ble Supreme Court in the case of Parbathbhai v. the State of Gujrath (2017) 9 SCC 641 and State of Madhya Pradesh v. Dhruv Gurjar (2019) 2 Mad LJ (Cri) 10, and has given sufficient guidelines that must be taken into consideration by the Court while exercising its jurisdiction under Section 482 of Cr. P.C, to quash non-compoundable offenses. One very important test that has been laid down is that the Court must necessarily examine if the crime in question is purely individual in nature or a crime against the society with the overriding public interest. The Hon'ble Supreme Court has held that offenses against the society with overriding public interest even if it gets settled between the parties, cannot be quashed by this Court. And in the present case, the crime in question was pure of individual nature which would have affected the future of both the parties and resulted in mental agony to the victim girl and her mother, that is why the court found it proper to quash the proceedings against the accused so that they both can lead a healthy life.
ANALYSIS OF THE ACT AND OTHER PRECEDENTS
The main objective of the Protection of Children from Sexual Offences Act, 2012[ii] is “to protect children from offenses of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for trial of such offenses and matters connected therewith or incidental thereto”. This is very clear that the objective of the Act is to provide protection to the children and not only to punish the child offenders. The Juvenile Justice Act calls child offenders Juveniles because below a certain age they are considered young to understand the gravity of offenses and are sent to correctional homes in place of jails. The Act is gender-neutral and the state of mind of the minors should be taken into account while dealing with a matter same as in the case of Vijayalakshmi and Another v. State Rep. by the Inspector of Police and Another. In the case of Erickson Lyngdoh v. State of Meghalaya 2020 SCC OnLine Megh 81, the court while dealing with a matter of teenagers eloping and marrying each other which resulted in the conception of a child in the girl’s womb, held that no sexual intercourse is an offense which is done with his lawful wife above the age of 15 years under exception 2 to Section 375 of the Indian Penal Code, 1860. The judgment does not favor underage relationships or child marriages but only defines that a girl is not always the victim in an eloping case. Further, these laws should be made applicable in a positive manner because the facts and circumstances of each case differ.
On the other hand, the objective of the Prohibition of Child Marriage Act, 2006[iii], is to eradicate child marriage from society to save innocent futures from getting ruined. In the case of Court on its Motion (Lajja Devi) and Ors. v. State & Ors. 2012 SCC OnLine Del 3937, two minors after falling in love eloped and got married according to the Hindu Rites & Ceremonies on which a complaint was filed by their respective families. The court in this issue held that a marriage in contravention of Clause (3) of Section 5 of the Hindu Marriage Act not be ipso facto void but could be void if any of the circumstances enumerated in Section 12 of the Prohibition of Child Marriage Act, 2006 is triggered. The courts in India believe that marriage is a sacrament and should be protected but this does not create an exception for child marriages. There are certain circumstances such as family against the marriage of their children, minors engaging in sexual intercourse resulting in teen pregnancy, or minors on the verge of turning adults, where the courts after due consideration of the facts and evidence allow such marriages.
In the above case, the alleged offenses on the accused boy were u/s 366 of the IPC, 1860, 6 of POCSO Act, 2012, and 9 of PCM Act, 2006. Punishing an adolescent boy for Kidnapping, abducting, or inducing a woman to compel her marriage, aggravated penetrative sexual assault, and male adult marrying a child would infringe the very purpose of the Protection of Children from Sexual Offences Act, 2012. While eloping with a girl, he had no idea of what offenses he would be charged with just for falling in love with a minor girl.
CONCLUSION AND SUGGESTIONS
Children are considered vulnerable and require guidance and protection from their parents or guardians. Various legislations enacted to protect children may have different provisions according to the theme of the legislation but their objective remains the same. The constitution of India guarantees the right to life and personal liberty (Art. 21) which means a boy in good faith entering a relationship with a girl is no offense but a minor girl is not considered competent enough to give her consent freely. In these situations, no one can be blamed absolutely and the decision of the court always depends upon the facts, circumstances, and evidence in that particular case.
Adolescents though not real-time experienced but are quite conscious of what they are doing. Psychological factors play an important role in the growth of an adolescent mind and the court should always take this into account. So, the Madras High Court has rightly observed that “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” in this case.
There should be a formulation of a committee called "Sensitive Issues Committee" under the POCSO Act, 2012, which would study the Psychological causes behind the committal of the offenses similar as in the case of Vijayalakshmi and Another v. State Rep. by the Inspector of Police and Another 2021 SCC OnLine Mad 317. The committee would then prepare an unbiased report understanding both the parties and taking into account their mindset at that particular time and would submit it to the court, whenever required.
[i] Doli IncapaxLaw Times Journal, http://lawtimesjournal.in/doli-incapax/ (last visited Apr 1, 2021); [ii] https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf; [iii] https://legislative.gov.in/sites/default/files/A2007-06.pdf.