Judgement Analysis

Child Sexual Abuse and Law- Internal Assessment 1

Sunidhi Gupta, 20010489

The order given by the High Court of Madhya Pradesh following the writ petition in the
nature of Mandamus in the case of “A” Minor Girl Through Father v. The State is
contentious in nature with overarching issue of ‘age of sexual consent’. The brief facts of the
case entail the girl through her father seeking relief to terminate her 8 weeks and 5 days long
pregnancy, reasoning it to be a result of rape by accused ‘Kapil Lodhi’ and on reporting an
offence under S.5 and 6 of POCSO, 2012; IPC as well as sections of Prevention of Atrocities
Act, 1989 has been registered.1 This analysis will firstly go through the jurisprudence of
reconsidering the ‘age of consent’ under POCSO, 2012 and why it is particularly relevant in
this order as well. The focus would also be on what the international law states about the
same. Further the paper would discuss the lack of agency given to the child especially girls
supporting it with feminist jurisprudence. This particularly speaks about the weightage of the
consent of a minor especially girl.

The ‘age of sexual consent’ is contentious topic in this case and needs to be discussed with
respect to the order because the girl is 17 years old is accounted as minor according to
Section 2(d)2 of the POCSO, 2012 where child is defined any person below the age of 18.
However, the provision has led to the criminalisation of consensual sexual activity where one
person is an adolescent as the ‘statutory age of rape’ or ‘age of consent to sexual activity’ was
increased from 16 years to 18 years following the implementation of the provision. 3 Further,
the discretion given to the judges to punish less than the minimum statutory sentence was
also eliminated.4 Following the data of Crime in India 20115 after POCSO, 2012 had been
imposed there had been a considerable increase in the cases of rape registered under POCSO,
2012 but the reason could be the gender-neutrality of offences, the enlarged definition of
‘rape’ or raising the age of consent to 18. However, to the contrary the increase in the
conviction rate was minimal which seems to be due to witnesses of the prosecution turning
hostile. The underlying reason can be prosecution of romantically consensual relationships.
This case can be such a case of consensual romantic relationship because the girl is minor
while the person accused of rape was an adult and the judgment states how the girl was
communicating with the accused and had an established physical relationship before the
particular incident following which the prosecutrix became pregnant and it cannot be denied
that the physical relationship might be with the will of the prosecutrix and in the case. Further
the order of the court also directs the prosecutrix and her father to sign an affidavit which
states that they would not turn hostile to the charges of rape during the trial. 6 There is data of
from the Sessions Court of Greater Mumbai and Dindoshi tells the tale of cases where the
criminal action was not filed by the ‘victims’ but the families who stated of their minor
daughters being kidnapped. Since, majority of parents are the informants indicates that the
girl had no issue with the accused, and it appears that the females were romantically involved
1
Order of MP High Court, W.P. No.31448/2023, Paragraph 2
2
Protection of Children from Sexual Offecnes Act, 2012, No.32 of 2012, (India), S.2
3
Adenwalla, M. et al. (2023) ‘age of consent’ under the POCSO Act, SCC Times. Available at:
https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/ (Accessed: 21 March
2024).
4
Adenwalla, M. et al. (2023) ‘age of consent’ under the POCSO Act, SCC Times. Available at:
https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/ (Accessed: 21 March
2024).
5
Crime in India, 2019, National Crime Records Bureau, Ministry of Home Affairs, Government of India
6
Order of MP High Court, W.P. No.31448/2023, Paragraph 16 &17
because of the large percentage of them becoming "hostile" in response to the prosecution's
charge of penetrating sexual assault.7
The reasons for increase in the age have not been clear in the objective of POCSO, 2012 but
Article 34(a) of UNCRC states that “State Parties to undertake all appropriate national,
bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to
engage in any unlawful sexual activity.” 8 However, the question is if all parties below the age
of 18 are coerced or induced into physical relationship and the term ‘inducement’ was defined
with the test by Supreme Court in S. Varadarajan v. State of Madras9 where the court said
that the girl was about to attain majority and the exposure, she had made her capable enough
to decide maturely of what was good or bad for her. These elements are important to decide if
relationship prosecuted under POCSO, 2012 is consensual or not. According to the facts of
the case being analysed also, there is no clear establishment of elements of coercion on girl
because it is nowhere submitted that she did not meet the accused at her own will, which
might eventually turn out to be a misuse of the protections given under POCSO,2012.
Precisely why there have been authorities and expert bodies in favour of reconsidering the
age of consent. The Justice Verma Committee Report suggested lowering the POCSO Act's
consent age to sixteen years old while interpreting Article 34 of the United Nations
Convention on the Rights of the Child. It stated that the Act was aimed inter alia to protect
children from sexual assault and abuse and not to criminalise consensual sex between two
individuals even if they are below eighteen years of age. 10 Further, the High Courts also
support redefining the age of consent. In addressing the case of a seventeen-year-old girl who
refuted the prosecution's case, the Madras High Court, although clearing the accused,
declared that such a relationship “inevitably assumes the penal character by subjecting the
boy to the rigours of the POCSO Act” and that “the boy involved in the relationship is sure to
be sentenced to 7 years or 10 years as minimum imprisonment, as the case may be.11
On the contrary there is another aspect in the facts of the case wherein the prosecutrix has
been given the promise of marriage while being in the physical relationship which might be a
deception by the accused to garner the consent of the minor. The Law Commission Report of
202312 provides how the age of consent should not be reduced but it also states that discretion
can be given to the court to determine if actual consent was involved in the act free from
deception or fraud. In cases particularly between a child over the age of 16 and an adult, if the
consent is mutual it is difficult to confirm consent because of nuances such as power
inequalities in the adult-child relationship or exploitation by adults based on the positive
feelings of the child towards the adult. Without being a ware f the exact situation it would be
difficult to ascertain the judgment and facts in question, if the consent involved was real or
out of deception.

AGENCY & FREEDOM OF PARTICIPATION

The submission by the counsel on how the consent of the minor girl is not of relevance.
Moreover, it has been mentioned very particularly that the father does not want the girl to
carry the child of the accused and is concerned about the social stigma that would a
accompany the pregnancy precisely why they want orders for termination of the pregnancy.13
7
Adenwalla, M. et al. (2023) ‘age of consent’ under the POCSO Act, SCC Times. Available at:
https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/ (Accessed: 21 March
2024).
8
United Nations Child Rights Convention, 1989, Article 34 (a)
9
AIR 1965 SC 942
10
Justice Verma Committee report, January 23, 2023
11
Sabari v. State of T.N., 2019 SCC OnLine Mad 18850
12
Law Commission Report, No. 283, September 2023
13
Order of MP High Court, W.P. No.31448/2023, Paragraph 8
Before the agency of consent given under law, it is imperative to recognise how considering
the consent of a minor irrelevant is violative of the right of participation provided under
Article 12 of the UNCRC which states that States Parties must ensure children can express
their views freely in all matters affecting them, giving them due weight based on their age
and maturity. They must also allow them to be heard in judicial and administrative
proceedings.14 There is also General Comment No. 12 issues in 2009, which further explains
the implementation of Article 12 is not necessarily on how a child speaks but should be how
the child acts. It expands on how the child has the right to be heard, irrespective of their age
and maturity, they have a right to be heard.15 Even the domestic law on kidnapping and
statutory rape a seem to be protecting the minor girl, their main purpose is to safeguard the
parent's or guardian's rights over the minor girl against her spouse or lover. The young couple
that makes the decision becomes entangled in caste and community conflicts, or familial
disputes.16 There is no agency that is given to women to make their own choices. Instead,
they are considered the sexual property and representation of honour of their community and
family which leads to snatching of rights.17 There have been submissions from the counsel of
the prosecutrix which state that the prosecutrix has narrated the same instance as the father
has said to the doctor which have also been mentioned in the MLC. But is not absolve one of
the assumptions that influence, or force form the side if the family was not involved in the
statement given by the girl considering her consent has not been considered relevant in the
case of POCSO, 2012 initiated against the accused.

14
United Nations Child Rights Convention, 1989, Article 12
15
General Comment No. 12 (2009): The Right of the Child to be Heard
16
Flavia Agnes, Controversy over Age of Consent, 48 EPW 10, 12 (2013)
17
Id at 12