Calcutta HC: Voluntary Joint Sexual Act will not attract Offences under POCSO


Alka Verma-

Published On: September 22, 2021 at 16:59 IST

The Calcutta High Court held that the voluntary joint act of Sexual Union is not going to attract the offences under POCSO.

“If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders,” stated Justice Sabyasachi Bhattacharyya.

Adding to it the Court said that to hold a person accountable for a Penetrative Sexual Assault, the mental condition, the maturity level and previous conducts also matter.

“The stated object of the Act is to protect children from offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences for matters connected therewith or incidental thereto. As such, while construing the expression ‘child’ in appropriate perspective, the age, maturity and other circumstances also become relevant to clinch a case on the ground of penetrative sexual assault,” stated the Court.

The Court also emphasized on the point that the provision of POCSO should be used for protection of someone, not as tool to compel someone to marry.

The Court made the observation while it was dealing with a case where the accused, aged 22 was convicted under Section 376(1) of the Indian Penal Code, and under Section 4 of the POCSO Act by the Trial.

The Accused in defense before the High Court stated that the victim, aged 16 ½ years gave her consent for the act and also had admitted her relationship with him.

On the other hand, the State argued that when the offense was committed the victim was a minor so her consent does not matter at all.

“Keeping in view the definition of ‘child’ in Section 2(d) of the said Act, even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old”, stated the Court.

Further the Court observed that there was no evidence to prove any forcible penetration from the side of Accused and hence noticing that both the Accused and the Victim are living an independent marital life, the Court decided to not put any stigma on either accused or on the victim.

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