[1]New Delhi: Consensual sex with a girl, who is below 18 years of age, would not amount to an offence under the newly enacted Protection of Children from Sexual Offences (POCSO) Act, a Delhi court has said.
The court rejected the plea of police and Delhi Commission for Women (DCW) that POCSO Act mandates there must be total prohibition upon teenagers or adolescents from having any kind of sexual relationship.
"I am afraid, if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of state and no individual below 18 years can be allowed to have the pleasures associated with one's body.
"But there lies a greater responsibility on all of us, the state including police in spreading and creating public awareness about the impact of girl or boy marrying at a tender age or indulging in unsafe sexual activities," Additional Sessions Judge Dharmesh Sharma said.
The observations came while acquitting a 22-year-old youth of charges of kidnapping and raping a 15-year-old girl whom he later married.
The POCSO Act treats as child the girls and boys who are below 18 years of age.
The provisions of POCSO Act suggest that where physical relationship had taken place with a girl's consent which is not in the nature of any assault or where consent is not obtained through unlawful purposes, no offence within its ambit can be said to have been committed, the court said.
"In my opinion it would neither serve the object of present enactment (POCSO Act) nor the purpose of criminal laws to hold the accused guilty on the ground that he had sexual intercourse with the girl below 18 years," the judge said, adding that it would not be good for the girl's health if her husband is sent to jail.
The youth, a native of West Bengal, was acquitted of the charges as the court held that the minor, on her own will, accompanied him and obstacles should not be put in their happy married life.
"As the evidence indicates, they got married voluntarily with their free consent, hence no case is made out under section 363 (kidnapping) and 366 (kidnapping or inducing woman to compel her marriage) of the IPC," the court said.
According to the prosecution, a complaint was filed before the police on March 5 by the minor girl's mother that her daughter has been missing since February 26.
On an information, the accused was arrested on March 6 and the girl was also recovered from his custody, it said.
The girl, in her statement recorded before a magistrate, said she had willingly gone with the accused to her native place in Kolkata and they got married in a temple there and since then they have been living together.
The police had booked the youth for the offence of kidnapping the girl and inducing her for marriage but the court had taken suo moto cognisance and added the charge under the POCSO Act dealing with sexual assault on a child
During the trial, the youth told the court that the girl had accompanied him to Kolkata of her own and they got married there but he denied having physical relations with her.
The court also noted that the marriage of the girl and the youth was also accepted by her mother.
The judge said, "It is high time that state authorities, its machinery, NGOs and women groups to make a determined and sustained endeavour to reach out to all in schools, colleges and residential places thereby creating public awareness on various aspects of life in case of marriage at a tender age...
"That might result in hindrances in getting education due to family responsibilities or economic conditions besides creating awareness amongst adolescents and young adults about the serious mental psychological, physical health issues that such relation entails in case of marriage at a tender age."
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