Shillong, Mar 12: The Meghalaya High Court has observed that prosecution of a person under the POCSO Act should also look into all aspects in case the sexual act was consensual and both the boy and girl are living together and have a child.
The division bench of Chief Justice Reva Mohite Dere and Justice Hamarsan Thangkhiew made the observation on a plea filed by a 22-year-old husband and his underage wife whose identity was not disclosed.
The couple sought to quash the First Information Report (FIR) filed by the grandmother of the girl on May 3, 2019, which was registered under the POCSO Act.
The FIR alleged that the man had sexually assaulted the girl, leading to her becoming pregnant. A charge-sheet was filed by the police against the man that is pending before the special judge (POSCO), Shillong.
However, the couple claim their relationship was consensual and that they have been living together as husband and wife since 2018 and accepted by both their families.
The court said while it is conscious of the fact that a case under POCSO Act is not a case against an individual, but is an offence against the society, “administration or enforcement of the law cannot be divorced from lived realities.”
“Rendering justice demands not only that the law be applied with precision, but also that it be tempered with fairness, compassion and empathy when the situation/facts of a case warrant it. Thus, it is necessary to maintain a fine balance between the competing interests of justice, deterrence and rehabilitation,” the court said.
Stating that when the victim and the man are married or are living together as husband and wife (and recognised) and have child/children, the court said, “sending the boy to jail would not serve the cause of justice, rather it would cause great injustice to the victim and the child born from the said consensual relationship.”
The court said the aim of the law is to do justice. “In cases where the court comes to the conclusion that the consent given by the victim is a genuine and informed consent and that it would be greater injustice to send the boy to jail, instead of letting the parties live together as one family,” it added.
The court said it might consider quashing the case, pending trial.
Further the court noted that with a significant number of innocuous “Romeo-Juliet” cases arising, it is the responsibility of the state government to create awareness amongst the people, including the children about the provisions of the POCSO Act, its punishment, and other, not only in the cities but also in the interior and remote places, including schools, colleges, etc.
The case has been sent to the single bench of the Chief Justice to take the matter up according to the merits.
