Consensual Sex Between Minors a Legal Grey Area: Bombay HC
“The consent given by minor is not considered to be a valid consent in eyes of law,” Justice Shinde said.
The Bombay High Court on Thursday, 4 February, granted bail to and suspended the sentence of a 19-year-old convicted under the Protection of Children from Sexual Offences (POCSO) Act 2012 for sexually abusing his 15-year-old cousin in September 2017.
In his order, Justice Sandeep K Shinde noted “consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be valid,” The Indian Express reported.
The accused had been convicted under Section 376 (2) (n), and provisions of POCSO Act. However, Manoj S Mohite, senior counsel had submitted that the victim had resiled from her statement and sought suspension of the sentence.
The court subsequently observed that the minor girl had retracted her statement in the FIR, and the Forensic Science Lab (FSL) report could not be accessed till the end of trial, the report added.
After a criminal appeal filed by the 19-year-old, the judgment was passed by a single-judge bench of Justice Shinde on Thursday.
According to the prosecution, the victim’s friend informed the class teacher of the incident. In March 2018, the teacher registered a complaint against the man. During that time, the victim was residing with the accused, who was her cousin, Live Law reported.
The medical officer did not see any external injuries during the general examination that suggested the use of force, and opined that clinical findings were consistent overall, subject to FSL report, The Indian Express reported.
The bench observed, “Indisputably, the FSL report was not received till the conclusion of trial. Thus, to be stated that the opinion of the doctor was provisional/indefinite and not final,” after going through the material on record.
According to the daily, the bench also noted that the victim had disowned a portion of her statement given under Section 164 of the Criminal Procedure Code (CrPC). The statement wherein disclosed that “it was a consensual act, not once but at least 4-5 times.”
The court also noted that the victim’s narrative of forced sexual abuse in another part of the statement was “at the instance of the teacher.”
As a result, the high court said, “A fact cannot be overlooked that the victim had resiled from her statement and even her mother was unfriendly to the prosecution. At the same time, the age of the victim and of appellant, their relations also cannot be overlooked.”
Justice Shinde stated in the order, “I am conscious of the fact that the passing of POCSO has been significant and progressive step in securing children’s rights and furthering the cause of protecting children against sexual abuse,” but went on to add that, “I am also conscious of the fact that consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be a valid consent in eyes of law,” the report added.
(With inputs from The Indian Express and Live Law)
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