Meghalaya HC: Minor Couple’s Acts of Mutual Love & Affection Do Not Qualify as Sexual Assault Under POCSO Act

Meghalaya HC Law Insider

Tanisha Rana

Published on: November 1, 2022 at 22:29 IST

According to the Protection of Children Against Sexual Offences Act (POCSO Act), a minor couple’s acts of mutual love and affection do not qualify as “sexual assault,” according to a recent ruling by the Meghalaya High Court. [Silvestar Khonglah vs. State of Meghalaya].

According to Justice W. Diengdoh, even if a minor’s permission is irrelevant when it comes to legal action for suspected sexual assault,

“…but considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them.”

In order to get the case dismissed, the accused minor and the mother of his girlfriend jointly petitioned the court.

The minor girl and her teacher shared a residence at the school.

The complaint was made by the mother after the school teacher found her minor daughter missing from her room.

The police filed a First Information Report (FIR) under Section 5(l)/6 of the POCSO Act (aggravated penetrative sexual assault) against the boy after learning that the daughter was having physical relations with the accused, who was also her boyfriend.

He was therefore arrested for ten months before being released on bail after being arrested.

The minor girl admitted in her testimony before the magistrate that she had had physical relations with the accused but that they were consensual and of her own free will.

However, after identifying prima facie evidence against the accused, the investigating officer filed a chargesheet against him.

When the petitioners sought the High Court on a mutual understanding, to quash the case against the accused, the case was tried before the Special Judge (POCSO), Shillong.

The Court agreed that the POCSO Act’s provisions were strict because lawmakers wanted to address the severe emotional scars and lasting effects that sexual assault can have on minor victims.

“What is even prevalent now is, what is known as ‘good touch’ and ‘bad touch’ where even a semblance of sexual overtone in the way an alleged perpetrator touches a child victim will make him liable for prosecution under the relevant provisions of the law,” the order stated.

The POCSO Act, however, could not be used in situations like these where a boyfriend and a girlfriend engage in mutual acts of love and affection, the Court ruled.

As a result, the Court dismissed the charges against the accused minor and freed him of all responsibility and liability in the criminal case.

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