Consensual sex a legal grey area as consent given by a minor is not valid consent in the eyes of law, says court
The Delhi High Court has termed as “unfortunate” the practice of the police filing cases under the stringent Protection of Children from Sexual Offences (POCSO) Act at the behest of the girl’s family, who object to her friendship and romantic involvement with a young man.
Justice Subramonium Prasad made the remarks while granting bail to a 21-year-old young man, who is facing charges of rape under the POCSO Act on the complaint filed by a 17-year-old girl.
The High Court noted that the victim and the young man are “more or less of the same age”, and photographs clearly show that they were in a relationship and that love between both of them cannot be ruled out as an option.
“This Court cannot overlook the fact that the petitioner (young man) is now only 21 having a complete life ahead of him. This Court also cannot overrule their friendship as both of them were students of the same school,” Justice Prasad said.
The High Court also took into consideration the statement of the girl that she would not like to pursue the case and that she wanted to move on with her life and study, and that she would also not want her friend to suffer in jail.
It is alleged in the FIR filed by the girl that in the month of June 2020, during the national COVID-19 lockdown, she had gone to her friend’s house to borrow books. While on her way back, he stopped her and caught hold of her and forcibly took her to the ground floor of his house, made her consume drinks, and she became unconscious.
When she regained consciousness, she found that she was lying down and the bedsheet was wet and her body was in pain. When she confronted her friend, he told her that since she was not adhering to his request of friendship, he had committed rape.
The FIR was lodged in August 2020 after the discovery that the girl was pregnant. After the registration of the FIR, the young man was arrested. The girl also had her pregnancy terminated.
The public prosecutor objected to the bail plea, arguing that even if the young man and the victim were friends, and in a relationship, it would still attract the sixth clause under Section 375 of the Indian Penal Code, which states that having sexual intercourse with the consent of a girl below the age of 18 would still constitute rape and would be punishable.
The public prosecutor said that the girl had been impregnated by the assault made by the young man, and she had to medically terminate her pregnancy, which has caused her considerable mental trauma.
“Consensual sex has been in legal grey area because the consent given by minor cannot be said to be a valid consent in the eyes of law,” Justice Prasad said, but added that in this case, the FIR was lodged at the insistence of the family of the girl, who were perhaps embarrassed on finding that she had become pregnant.
Fearing a social backlash and to get the pregnancy medically terminated, this FIR had been filed giving it the colour of sexual exploitation and bringing it in the ambit of the POCSO Act, which envisages the abolition of child abuse, the High Court said.
Justice Prasad remarked that the rigour of the law was being misapplied and subsequently misused in this case.
“The petitioner has been in jail for over 12 months and is being subjected to be in the company of hardened criminals. This would do more harm than good to a common man of 21 years of age,” the High Court said while granting the accused bail.
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