The issue with criminalising all adolescent relationships
The Court exercised its extraordinary jurisdiction, under Article 142 of the Constitution, and did not impose any sentence on a young man convicted of aggravated penetrative sexual assault under Section 6, Protection of Children from Sexual Offences (POCSO) Act. The case involved a 14-year-old girl from rural West Bengal who left her home to be with a 25-year-old man. The criminal justice system was set in motion by her mother. Although she stayed in a shelter and was restored to her mother, she left again to be with the man due to stigma, humiliation, and surveillance from her family. They got married and had a child in 2021 — when the girl was 17. He was arrested subsequently and tried for kidnapping, rape, aggravated penetrative sexual assault, and child marriage.
Despite noting the helplessness of the girl in court, with the child on her lap, the POCSO Special Court was constrained by stringent legal provisions and sentenced the accused to 20 years imprisonment.
In 2022, during the appeal, the Calcutta High Court recognised her distress — cut-off by her family and left to care for the baby and a mother-in-law with cancer, while fighting for the release of her partner. It noted the socio-economic background of the couple who did not understand that their relationship constituted an offence. Taking a 'humane view of the matter to do complete justice' the High Court reversed the lower court's conviction. While noting that 'the approach adopted under the POCSO Act renders adolescents vulnerable to criminal prosecutions for normative sexual behaviour,' the High Court also made several problematic comments. including one that female adolescents should 'control sexual urge/urges as in the eyes of society she is the looser [sic] when she gives in to enjoy the sexual pleasure of hardly two minutes'.
Top court's intervention
Following media outrage over these remarks, the Supreme Court, in December 2023 took up the matter suo motu in Re: the Right to Privacy of Adolescents. It restored the accused's conviction and rejected the concepts of 'non-exploitative' sexual acts with a minor aged 14 years, and the category of 'older adolescents'. Incidentally, both these concepts are recognised in international human rights law and medical parlance, respectively. General Comment No. 20 by the Committee on the Rights of the Child under the UNCRC, exhorts States to 'avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity'.
Before finalising the sentence, in August 2024, the Court took a step, befitting the case's complexity, by directing the state to appoint an expert committee comprising a clinical psychologist, a social scientist, and a child welfare officer to ascertain whether the 'victim' — now an adult — wanted to continue living with the accused or preferred to accept benefits offered by the State Government. The committee's report and the Court's interaction with the woman revealed the heavy emotional and financial toll that the legal battle had had on the family and the 'collective failure of the systems' in protecting her.
The Court recognised the profound irony at the heart of this case. The young woman had spent her sparse resources fighting for the perpetrator's release, falling into debt and moving from court to court in desperate attempts to reunite with her family. It concluded that 'sadly, true justice lies in not sentencing the accused to undergo imprisonment', adding that 'if we send the accused to jail, the worst sufferer will be the victim herself.'
Both the High Court and Supreme Court barred their cases from being treated as precedent, with the top court describing this as an 'extraordinary' case. However, empirical studies suggest that adolescent relationships, especially above 16 years, is not extraordinary but a common reality. An Enfold study of 1,715 'romantic cases' showed that out of 7,064 POCSO judgments in Assam, Maharashtra and West Bengal between 2016 to 2020, 24.3% involved romantic relationships, with 82% of victims in such cases refusing to testify against the accused. Another study by Enfold and P39A on judicial trends in 264 cases under Section 6, POCSO Act from these States found that 25.4% involved consensual relationships.
Various High Courts have emphasised that criminalising consensual sex was never the objective of the POCSO Act, while scientific studies confirm that sexual exploration is normal for older adolescents. However, recently the Bombay High Court in Aakash Waghmare vs State of Maharashtra (2025) refused to quash a case involving a consensual relationship, by stating that such petitions should wait until the government considers the suggestion of decriminalisation of adolescent sexual relationships under POCSO Act. This judicial reluctance reveals the limitations of case-by-case exceptions and the urgent need for structural reform.
The system that continues to fail
With remarkable candour, the Supreme Court acknowledged, 'This case is an illustration of the complete failure of our society and our legal system.' Community humiliation, family abandonment, paternalistic judicial language, absent child protection systems, corrupt legal practices and sensationalist media coverage contributed to her seven-year ordeal. However, the Court's assumption that implementation of the rehabilitative provisions under the Juvenile Justice (Care and Protection of Children) Act, 2015 by the Child Welfare Committee would ensure that 'no victim will face the situation which the victim in the case had to face', belies the experience of many adolescent girls, who routinely endure institutionalisation, humiliation and the deprivation of liberty in such cases.
A victim, but of what?
As the law sets the age of consent at 18 — a development from 2012 before which it was 16 — the Supreme Court, in its initial judgment, did not envisage any non-exploitative consensual relationship involving an adolescent. The Supreme Court dismissed the observation of the Calcutta High Court that 'the law undermines the identity of adolescent girls by casting them as victims, thereby rendering them voiceless', as 'shocking', indicating a paternalistic approach unable to imagine such adolescents as anything but victims.
However, the expert Committee report emphatically stated that 'the law saw it as a crime, the victim did not… the legal crime did not cause any trauma on this particular victim. It was the consequences thereafter'. Her trauma stemmed not from the relationship itself but from police involvement, court proceedings, and her struggle to secure her partner's release while raising a child alone.
This case exposes the fundamental tensions within the POCSO Act and ground realities of adolescent sexuality. The girl's consent was undeniably flawed, given her age, poverty, lack of a supportive environment and the cultural acceptability of child marriage, a lack of opportunities, and exposure and life choices beyond marriage. Nevertheless, it exemplifies the need to re-examine the blanket approach under the POCSO Act and its assumption that all sexual acts involving adolescents are inherently exploitative.
Young people who choose to marry early are often asserting their agency through the very limited options available within patriarchal structures. While consent may be flawed in such cases, it is crucial to interrogate state responses and whether they are support-oriented, shape the ability to exercise choice, and expand options. True justice requires moving beyond criminalising all adolescent relationships. Instead it must recognise consent of those above 16 years with conditions in which consent will be invalid such as coercion, and sexual relationships with persons in positions of trust and authority. It also necessitates addressing the root causes of underage elopements and power imbalances in intimate relationships. The Court's direction to the central government to consider measures for comprehensive sexuality education, life-skills training, emergency assistance, counselling services and comprehensive data collection on these interventions, is a step in this direction.
Swagata Raha is a legal researcher on child protection. Anindita Pattanayak is a legal researcher on child protection
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