With several high courts including the Meghalaya High Court throwing their weight for “romantic love” as the reason justifying cohabitation or marriage with minor girls, confusion has now prevailed among officials responsible for enforcing the POCSO Act, 2012.
In the context of consensual or voluntary sexual intercourse, and more so if the girl is underage while the boy would be above the age of 18 and also if it is confirmed that they are living as husband and wife and the wife perhaps having given birth to a child, the issue becomes more complex.
Definitely, it is high time that the legislators come up with fresh perspective on the issue to keep up with the modern times where such adolescent affairs have become a routine, otherwise, these young lovers are liable to get punished under the sections of the POCSO Act which uncompromisingly holds that a minor, defined as a person below 18 years is not old enough to give consent to have sexual intercourse.
But till that happens, the impact of the Meghalaya High Court ruling passed by Justice Wanlura Diengdoh on March 23 has put the line-up of child protection structures, including the social welfare department, police, hospital authorities, doctors, parents and the lot, into a giddy twirl.
In this particular case on which the Meghalaya High Court had ruled, a minor girl of about 17 years of age was brought to NEIGRIHMS here for medical treatment and delivery of her baby.
When enquired by the hospital authorities, it was learned that the minor girl was married and the couple have been living under the same roof with their parents since the month of March, 2020.
On January 16, 2021, the minor girl gave birth to a baby boy and was still under medical treatment in the hospital. Noting that the parents are not willing to file any complaint, the in charge of Mawdiangdiang police outpost has accordingly requested that appropriate action be taken in this regard.
On receipt of the FIR, a case was registered by Pynursla police under sections 5(j)(ii)/6 of the POCSO Act against the husband and on the Investigating Officer finding a prima facie case against the husband, eventually the Special Judge (POCSO), Shillong took cognizance of the case and the husband was accordingly made to stand trial in connection with Special (POCSO) Case No. 15 of 2021 under sections 5(j)(ii)/6 of the POCSO Act, 2012. The case is at the stage of consideration of charge.
The husband who earns his livelihood through daily wage labour has cohabited with the young wife as per Khasi customs since the month of March, 2020 and is living together with his wife and family members in the same roof in a happy conjugal relationship.
The husband and his wife as well as the family member were overjoyed when they were blessed with a child, but their joy turned to sadness when they learned that the FIR was filed against him at the behest of the hospital authorities and that he was charged under the POCSO Act which is unknown to him.
While the charge sheet was being framed, the husband moved the Meghalaya High Court seeking dismissal of the case which ended with the High Court quashing the FIR and the POCSO case against him.
Confusion has crept into the commitment by officials to implement the POCSO Act in letter and spirit. In their awareness campaigns they reiterate that the POCSO Act clearly says that sexual intercourse with a minor is a crime with or without the consent of the minor girl or for that matter boy.
If any underage girl was found to be pregnant or came for delivery to a hospital, the authorities are to inform the police immediately. The police in turn are to file a suo moto case. The severity of punishment for the authorities who fail to do this has ensured diligent pursuit of this child protection law.
But this High Court ruling and similarly others previous to it, dismissing some POCSO cases, has shadowed the confidence in the law they sought to implement, sources confided.
The government and other authorities will have to discuss these issues and come up with solutions,” said a child safety activist.
Workers in child protection units told Highland Post that they are now confused as to how to follow up on complaints in these kinds of cases.
They said it is true that there are many cases like this in which parents approach them about their teenage daughters being sexually molested. Earlier even if some liaison was suspected between the girl and man, with the POCSO Act clearly stating that consent is not an issue with minors, cases were registered.
But now we’re not so sure what we are to do,” said one of them while also pointing out that earlier they confidently propounded the law in awareness campaigns that sex with an under 18 year old is a crime and men are liable to be booked under POCSO Act.
At a conference on the POCSO Act sponsored by the National Commission for the Protection of Child Rights (NCPCR) held here recently, the chairperson of the Meghalaya State Commission for the Protection of Child Rights, Iamon Syiem said that the Meghalaya High Court ruling has to be discussed in detail.
She said that the cultural context has to be taken into account before reaching any conclusion on this sensitive issue.
Meghalaya has one of the highest rates of teenage pregnancies and teenage mothers, separation and single parents. These have to be figured into any discussion on romantic love and the POCSO Act.
