‘Love is not penal': SC on minor couples in genuine romantic relationships
A bench of justices BV Nagarathna and R Mahadevan made the remarks while hearing a batch of petitions that sought guidelines to prevent misuse of the Protection of Children from Sexual Offences (POCSO) Act in cases where minors engage in consensual relationships.
During the proceedings, the court also dismissed petitions by the National Commission for Protection of Child Rights (NCPCR) and the National Commission for Women (NCW) challenging Punjab and Haryana high court orders that recognised the validity of marriages of Muslim girls after attaining puberty.
The bench said the commissions had 'no locus standi' in such matters, remarking: 'It is strange that NCPCR, which is for protecting children, has challenged an order protecting two children…Leave these couples alone.'
ALSO READ | Rape FIR under POCSO can't be quashed based on compromise or marriage: Punjab and Haryana HC
Personal laws in Islam allow a Muslim girl to enter into a contract of marriage after attaining puberty whereas a set of common civil and criminal laws in India proscribes the marriage of girls under 18 and further makes sexual intercourse with minors a penal offence.
With the dismissal, a January 2023 order of the top court that the high court ruling should not be treated as precedent also came to an end.
During the Tuesday hearing, the bench noted that while POCSO remains a vital tool to protect children against sexual abuse, there is a distinction between exploitative criminal conduct and 'romantic bonds' between teenagers. 'Can you say it is criminal to love?' Justice Nagarathna asked, cautioning that prosecuting adolescents for consensual relationships inflicted lasting trauma.
Appearing for petitioner NGO Bachpan Bachao Andolan (BBA), senior advocate HS Phoolka pressed for safeguards to ensure that leniency in such cases is not abused, suggesting for instance that the age gap between minors in relationships be capped at three years. Phoolka also assailed a 2022 circular by the Tamil Nadu director general of Police directing the police officials to not show haste in effecting an arrest of the accused in consensual relationships, saying such mandates were prone to be misused and minors getting trafficked.
But the bench was emphatic that investigators can look into the facts of each case. 'It has to be examined on a case-by-case basis. Why do you want to prosecute everyone? Every case is different, and police have to investigate, apply their mind, and segregate genuine cases from those that should be prosecuted,' the court said.
ALSO READ | Adolescence, consent & the grey zone for Pocso
The bench highlighted the misuse of POCSO provisions by parents who file cases when daughters elope, often citing 'honour' as the pretext. 'Many such cases are filed by the girls' parents to so-called protect their honour. There will be honour killings if we start treating all such cases as crimes,' it warned.
'Look at the trauma when a boy has to be lodged in jail or face prosecution despite having a consensual relationship with a girl who is on the verge of attaining majority…We have to keep the realities of society in mind,' said the court.
The bench also reflected on the social realities of adolescent life: 'Girls and boys study together, spend time together. They can develop feelings for each other and have romantic relationships. Where there are genuine romantic relationships; where they want to get married or want to be together…why should they be stopped?'
The same bench also refused to entertain different petitions filed by NCPCR and the National Commission for Women (NCW), which had challenged separate high court orders on the issue.
In one case, the bodies had assailed a Punjab and Haryana high court judgment, which held that Muslim girls are legally old enough to marry once they reach puberty at the age of 15; in another, the high court had handed custody of a minor girl to her adult husband following a habeas corpus plea.
The bench said that NCPCR or NCW had no locus (legal standing) to interfere in these personal matters.
'NCPCR has no locus standi to challenge such orders,' the bench held. It further remarked: 'It is strange that the NCPCR, which is for protecting the children, has challenged an order protecting two children. How can we set aside protection orders of a high court? Leave these couples alone.'
With the NCPCR's petitions getting disposed of on Tuesday, a January 2023 order by a previous bench of the Supreme Court that the Punjab and Haryana high court judgment shall not be treated as a legal precedent also ends.
The court's observations come against the backdrop of multiple pending pleas, including those filed by BBA and NCPCR, that grapple with whether the statutory age of consent at 18 under POCSO should be revisited. Senior advocate Rajshekhar Rao assisted the court as amicus curiae.
In separate proceedings, the Union government last month adduced its submissions in the top court, opposing any move to lower the age of consent under POCSO or introduce exceptions for adolescent relationships. As reported first by HT on July 24, the government told the court that such dilution, 'even in the name of reform or adolescent autonomy,' would dismantle the statutory shield meant to safeguard minors and risk opening the door to child abuse. It added that the current threshold of 18 years must remain 'strictly and uniformly enforced' to maintain the integrity of child protection laws and uphold the best interests of minors.
ALSO READ | Mutual acts of love between minor couple not sexual assault under POCSO, says HC
HT's analysis of government data, presented as part of its written submissions, revealed a stark disparity between the number of juveniles and young adults charged under rape and child sexual abuse laws and the relatively small proportion who are eventually convicted, throwing focus on the ongoing debate over the age of consent and its unintended consequences.
Between 2018 and 2022, only 468 juveniles aged 16-18 were convicted under Section 376 (rape) of the Indian Penal Code, despite more than 4,900 being booked across the country in the same period , a conviction rate of just 9.55%. For charges under the Protection of Children from Sexual Offences (POCSO) Act, just 855 convictions were recorded out of 6,892 cases during the same period , a rate of only 12.4%.
The corresponding numbers for young adults aged 18-22 tell a similar story. While 52,471 were arrested under these stringent laws during this period, only 6,093 were convicted under POCSO, a conviction rate of just 11.61%. Of 24,306 arrested between 2018 and 2022 for rape, only 2,585 young adults were convicted under Section 376 of the Indian Penal Code, amounting to just 10.63%.
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