MISUSE OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012.

INTRODUCTION

According to the Crime in India report published annually by the National Crime Records Bureau, Ministry of Home Affairs, Government of India, 5,368 cases of child rape were registered in 2009; 5,484 cases in 2010; and 7,112 in 2011[1], showing a consistent increase in the incidents of sexual crimes against children, exposing the need for a distinctive legislation on sexual offences against children in India. The Protection of Children from Sexual Offences (POCSO) Act enacted in 2012 stands out as a comprehensive legislation against sexual crimes against children in India. It has increased the scope of reporting sexual crimes against children in India by expanding the definition of sexual crimes in to include penetrative sexual assault, non-penetrative sexual assault, sexual harassment and pornography. The act “deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher or doctor”[2]. Unlike the Indian Penal Code, a victim under the POCSO act can be any child irrespective of gender. To prevent the further victimisation of the survivors through the gruelling justice seeking process, the act also focuses on safeguarding the interests of the child at every stage of the judicial process by incorporating child friendly mechanisms for reporting, investigations and speedy trial of offences through designated Special Courts. The punishment is prescribed as per the gravity of the offence with a maximum term of rigorous imprisonment for life, and fine. The task of overseeing the effective implementation of the POCSO Act has been assigned to the National Commission for the Protection of Child Rights established in 2007.  

The POCSO Act is an extremely important step towards controlling the menace of sexual crimes against children in the country. However, one of the paramount concerns that needs to be immediately addressed in this regard is the growing tendency among people to misuse the provisions of this act for self-regarding reasons.

INSTANCES OF MISUSE

Misuse by families to put an end to the romantic relationships of their adolescent children:

Under the POCSO Act the age of consent to sexual activity has increased from 16 years to 18 years, therefore, criminalising sexual activity committed with a child above 16 years and below 18 years even if such activity is consensual. A study of the trend observed in cases registered under the POCSO Act show that often in case of consensual sexual act, missing complaints have been filed by the family, predominately the parents of the girl , when their children elope or make an attempt to elope with their romantic partner[3].

 “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act” stated the Madras High Court, highlighting the misuse of the act by families for prosecuting the partner of their teenage daughters. The court made the observations during Vijayalakshmi v. State[4] while quashing criminal proceedings against an auto driver, while hearing a petition filed by a woman and her daughter, seeking to quash the proceedings against the accused, pending before the Fast Track Mahila Court for offences under Section 366 of the Indian Penal Code, 1806[5]; Section 6 of the Protection of Children from Sexual Offences Act, 2012[6]; and Section 9 of the Prohibition of the Child Marriage Act, 2006[7]. A single Judge Bench of Justice N Anand Venkatesh insisted that the legislature needs to keep pace with the changing societal needs and bring about necessary changes in law as and when required especially in stringent laws such as the POCSO Act: “An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act”. In the present case the judge pointed out that the girl herself had filed a memo stating that it was she who forced the accused, to elope with her in 2018 due to pressure from her family. However at the same time, the court reiterated that every case has its own facts and the decision of each case depends on its peculiar circumstances.  Not every case where the accused and the victim are in a relationship justifies the sincerity of the accused. Similarly, there can be no denying the fact that in certain instances the victims of the abuse under the trauma of the incident may try to convince themselves that the element of consent was present.

As Justice N. Anand Venkatesh has observed, there seems to be a need for bringing about a change in the legislation to be able to balance the purpose of safeguarding children against sexual abuse and at the same time prevent the misuse of the act to take punitive action against adolescents involved in consensual relationships. A similar idea was put forward by Justice V. Parthiban in Sabari v. Inspector of Police[8], where she suggested that the act could be amended in a way that in case of a consensual relationship between a girl of 16 years or more, the age of the offender ought not be more than five years or so than the girl, so that no one can take advantage of the impressionable age of the victim. The National Commission for Protection of Child Rights (NCPCR) has also supported the “close in age” exemption to prevent punitive action in cases of consensual relationships between adolescents.

Misuse in cases of custody battles:

Stating a growing tendency to misuse the provisions of the POCSO Act during cases regarding the custody of children by filing erroneous cases of sexual abuse against biological fathers to prevent them from getting the custody of his child, the Kerala High Court has recently observed that the family courts should take due care and examine the evidence adequately before initiating proceedings under the said act. The court made the observations in Suhara v Muhammad Jaleel[9] while granting the custody of a five year old girl to the father, while dismissing an appeal filed by her grandparents who sought her permanent custody.

While the father claimed that being the natural guardian of the child, he had been taking care of his daughter since the death of his wife, the grandparents alleged that since the death of their daughter Sajna the child was taken care of and maintained at the house of the grandparents and family. They also alleged that it was his cruel conduct towards his wife, which included demanding dowry that led to her death for which they had also registered an FIR against him under Sections 498A, 304B, 302, 201 and Section 149 of IPC. A case against the father had also been filed in the Perinthalmanna police station registered under Sections 5 and 6 of the POCSO Act. While the counsel of the appellant pointed out that the alleged sexual abuse of the ward by the parent should disqualify him from being entitled to plead for the permanent custody of the child, the court made it very clear that the mere registration of a crime under the provisions of the POCSO Act against the parent of the ward does not necessarily mean that the allegations are true  and therefore the family courts need to be very cautious and investigate the circumstances under which the case has been registered to negate any possibility of a malicious intent behind the filing of the case. The court observed: “Unless a very cautious approach is adopted by the Family Court to ensure that information on which crime was registered is not frivolous and vexatious, many a innocent parent fighting for custody of his own ward would be victim of false implication of crimes under the POCSO Act”. In the present case, on the examination of the entire evidence on record, the court concluded that ever since the mother’s death the child was taken care of and maintained by the father alone and none of the allegations against him including the one under the POCSO Act could be proved and therefore the father being deemed as a fit and competent guardian of the child was granted the request for permanent custody of the child.

CONCLUSION

Children are the greatest asset of any nation and their care and protection is the responsibility of the society as a whole. While the POCSO Act is a step forward in this direction, there is an urgent need to improve certain aspects covering the implementation of this Act. A person prosecuted under the POCSO Act not only undergoes a stringent punishment but is also shunned from the society, and therefore there is an urgent need to prevent its misuse for selfish motivations so that all the attention can rightfully be redirected to protect the future generations of our nation from such heinous crimes. Such instances only defeat the purpose of the act by diverting the attention of our legal system from the real cases and are a step backward for the justice system in India.


[1] All publications of Crime in India (1953-2019), available at:

 https://ncrb.gov.in/en/crime-india (Last Modified October 01, 2020)

[2] Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, available at:

https://wcd.nic.in/ (Last Modified April 19, 2021)

[3] Centre for Child and Law and National Law School of India University Implementation of the POCSO act, 2012 by special courts: challenges and issues. Bengaluru: Centre for Child and Law (CCL) and National law school of India university (NLSIU), 2018.

[4] Vijayalakshmi v. State, 2021 SCC OnLine Mad 317

[5] The Indian Penal Code, 1806, available at:

   https://legislative.gov.in/ (Last Modified April 15,2021)

[6] The Protection of Children from Sexual Offences Act, 2012, available at:

https://www.indiacode.nic.in/ (Visited on April 18,2021)

[7] The Prohibition of the Child Marriage Act, 2006, available at:

https://legislative.gov.in/ (Last Modified April 15, 2021)

[8] Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110

[9] Suhara v. Muhammed Jaleel, 2019 SCC OnLine Ker 1237

Author: Raawiah Mansoor

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