Introduction

Romantic relationships involving adolescents can raise difficult questions under India’s child-protection laws. The Protection of Children from Sexual Offences Act, 2012, establishes a statutory framework for protecting persons below 18 from sexual offences. Recent decisions of the Uttarakhand High Court have brought renewed attention to the distinction between a relationship involving an adolescent and conduct that attracts criminal liability under POCSO.

In T v. State of Uttarakhand, the Uttarakhand High Court recently rejected bail in a case involving allegations of sexual assault against a minor. The Court observed that a romantic relationship and subsequent proposal of marriage could not dilute the statutory protection available to a minor under POCSO. The observations were made while considering bail and were not a final determination of guilt.

In Aman Sagar v. State of Uttarakhand, the High Court took a different approach on the facts before it and quashed POCSO proceedings involving a relationship between a 17-year-old and a 21-year-old. The Court considered the circumstances of the relationship and observed that child protection does not require criminalising adolescence. These decisions do not create a general exemption from POCSO for romantic relationships. The statutory provisions continue to determine whether the alleged conduct constitutes an offence.

Who Is a Child Under POCSO?

Section 2(d) of the POCSO Act defines a child as any person below 18 years of age. The age of the person is therefore central to determining whether the special statutory protections under POCSO are attracted. The Act does not make the existence of a romantic relationship a general exception to its provisions.

What Does Section 3 of POCSO Cover?

Section 3 defines penetrative sexual assault. It covers specified forms of sexual penetration involving a child. Section 4 prescribes the punishment for penetrative sexual assault. The punishment depends on the applicable statutory provision and the circumstances established in the case.

Therefore, where the prosecution alleges conduct falling within Section 3 and the person involved was below 18, the relationship between the parties does not by itself determine whether the offence is made out. The prosecution must establish the ingredients of the offence in accordance with law.

What Is Aggravated Penetrative Sexual Assault?

Section 5 identifies circumstances in which penetrative sexual assault becomes aggravated penetrative sexual assault. These circumstances include situations involving particular positions of authority, trust or vulnerability and other forms of serious abuse specified by the provision.

Section 6 provides the punishment for aggravated penetrative sexual assault. One circumstance specifically recognised under Section 5 is where the assault results in the pregnancy of the child. Section 5(j)(ii) covers penetrative sexual assault resulting in the pregnancy of the child. Where the statutory ingredients are established, this can therefore elevate the offence to aggravated penetrative sexual assault.

What About Sexual Assault That Does Not Involve Penetration?

POCSO is not limited to penetrative sexual offences. Section 7 defines sexual assault as certain physical contact with the sexual intent of a person against a child without penetration. Section 8 prescribes punishment for sexual assault.

This distinction is important because the applicability of POCSO does not depend entirely on whether the allegations involve penetrative sexual activity. The specific conduct determines which provision is relevant.

What About Sexual Harassment?

Section 11 deals with sexual harassment of a child. The provision covers several forms of conduct, including making sexually coloured remarks, repeatedly following or watching a child, showing a child pornography or making certain sexual demands.

Section 12 provides the punishment for sexual harassment. Consequently, conduct directed towards a child can attract POCSO even where the allegations do not amount to penetrative sexual assault or sexual assault under Sections 3 or 7.

What Is the Legal Position on Grooming?

The expression grooming is commonly used for conduct in which an individual develops trust or an emotional connection with a child with the purpose of facilitating exploitation or abuse.

POCSO does not contain one standalone offence titled “grooming”. Instead, conduct associated with grooming can form part of the circumstances relevant to offences under POCSO or other applicable laws.

For example, an adult allegedly using Instagram or another messaging platform to establish contact with a child, manipulate the child, threaten the child or arrange circumstances leading to sexual exploitation could result in the digital communications becoming relevant evidence. The specific offence, however, depends on the conduct proved and the statutory ingredients satisfied.

What Happens When Online Platforms Are Involved?

Online communication can play an important role in cases involving children. Messages, photographs, videos, call records and other electronic material can become relevant to establishing contact, communication, threats, inducement or other conduct.

Depending on the nature of the material and the circumstances, provisions of the Information Technology Act, 2000, can operate alongside POCSO. Sexual or sexually explicit material involving children can attract particularly serious consequences under the applicable provisions of the IT Act.

Does a Promise of Marriage Change the Legal Position?

A proposal or promise of marriage does not by itself remove the statutory protection provided to a child. This was the principle emphasised by the Uttarakhand High Court in T v. State of Uttarakhand. The Court specifically rejected the argument at the bail stage that a romantic relationship and subsequent proposal to marry could dilute the protection provided by POCSO.

However, the existence and nature of a relationship can still become relevant when a court examines the facts, evidence and legal sustainability of proceedings. The decision in Aman Sagar demonstrates that courts can consider the circumstances of an adolescent relationship while exercising their jurisdiction in an appropriate case.

What Should Be Understood About Adolescent Relationships?

The POCSO Act establishes an age-based statutory protection, but determining whether a particular prosecution can legally continue still requires an examination of the specific offence alleged and the evidence supporting it.

The recent Uttarakhand decisions illustrate this distinction. T v. State of Uttarakhand emphasises that a romantic relationship or marriage proposal cannot by itself dilute POCSO protection where the prosecution alleges an offence against a child. Aman Sagar, on the other hand, shows that a High Court can examine the particular circumstances of an adolescent relationship when considering whether continuing criminal proceedings would amount to an abuse of process.