JUDICIAL INTERPRETATION OF THE PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT, 2012

SYNOPSIS

INTRODUCTION

The protection of children from sexual offences Act (POCSO) was passed in the year 2012.
For the first time, a special law has been passed to address the issue of sexual offences against
children. Earlier, the Indian Penal code covered most sexual offences, and no special child-
friendly procedure in as much depth as POCSO provides, existed. The act accords protection
to minors (under the age of 18) against sexual assault, sexual harassment, pornography, and
establishes special courts with child friendly procedures.

The most peculiar feature of the Act is the absence of the term “rape”, however, the concept of
the term as (per IPC) has found it’s place under an umbrella provision of “penetrative sexual
assault”.1 The courts of the country have often taken not just different, but contradicting stands
when it comes to interpreting the nature and scope of Sexual Assault, specially in cases related
to consensual adolescent sex and sex with a minor in Marriage. Due to the dichotomy among
different rulings, a wide grey area has been created and urgently needs to be clarified.

Furthermore, it is important to not that the aforementioned act is only for the benefit of a “child”
within the definition of article 2.2 The restrictive interpretation of who constitutes a “child”
under the act by the courts, has shed light upon the growing importance of friendly procedures
for not just children, but even adults whose mental age is that of a child.

The research paper shall analyse past cases in order to bring some form of clarity to the readers
about the aforementioned provisions of POCSO and their clashing nature with the Indian penal
code. More specifically, the paper is structured in three steps. Firstly, whether a contradiction

1
The Protection of Children from Sexual Offences Act 2012, art 3
2
id, art 2(d)
in the legal sense really exists, secondly, the extent of such a contradiction, and thirdly, any
possible solutions to the contradiction. Furthermore, the second part shall focus upon the
relevant steps in order to bring more suitable and friendly procedures for the mentally disabled.

LITERATURE REVIEW

In the course of the research project that has been undertaken, the Author seeks to understand
the the Judiciary’s approach to different situations and cases, and how their decisions affect the
society. Unlike the Indian Penal code, POCSO does not create any exception for sexual
intercourse in marriage. However, several courts have acquitted the accused on the ground that
the accused had married the victim after intercourse.3 Such decisions by the courts go against
the very object of giving special protection to children, in a society where the victim is blamed
more for rape than the accused, families often prefer marrying the victim off to their assaulters
in order to protect their honour and respect4. Therefore, any rape perpetrator could seek legal
coverage against punishment by simply marrying their victims. Moreover, the courts have even
offered legitimacy to consensual adolescent sex in prior cases despite the fact that it is
prohibited by the Indian Penal Code.5 The court went on to state that in “sexual assault” consent
is immaterial and what matters is “assault” and since no coercion or threat or use of force was
included, consensual sex could not be included within the purview of “assault” and the accused
was exonerated.6

Furthermore, the Supreme Court had recently declared that “child” within the definition of
POCSO was only in terms of the “years” for which an individual had lived for, and was not
inclusive of the “mental age”.7 The above decision effectively denies the protection of POCSO
to individuals who physically are above the age of 18 however mentally, only remain children.

3
State v. Aas Mohammad SC No. 78/2013
4
PRATIKSHA BAXI Feminist Contributions to Sociology of Law: A Review Economic and Political Weekly
Vol. 43, No. 43 (Oct. 25 - 31, 2008), pp. 79-85 [82]
5
Indian Penal Code 1850, sec 375
6
State v. Suman Das SC No. 66/13
7
Eera v. State (Govt. of NCT of Delhi) 2017 SCC 787
These findings have been accumulated after a perusal study of various sources like articles,
case laws, law committee reports, law journals and other resources that have helped in
construction of this synopsis as well shall help in the documentation of the project “Judicial
interpretation of The protection of children from Sexual Offences Act 2012”

STATEMENT OF PROBLEM

The project seeks to acknowledge the various contradictory interpretations of “sexual assault”
with respect to consensual adolescent sex and sex in marriage by the Judicial system of the
country. The decisions have both positive and negative implications, such as legitimizing
consensual adolescent sex may be seen positively by many liberals8, it still impinges upon the
lack of understanding of the nature and implications of sexual intercourse in most adolescents.9
Further, the decision by the courts to acquit the accused in cases related to sexual assault in
Marriage has created a vulnerable class of girl between the age of 15 to 18 who cannot get legal
coverage under POCSO.

Further, one of the primary purposes of POCSO was to provide a child friendly environment
to children so that they can express themselves openly, and do not get intimated. A person who
although is physically an adult, but mentally remains a minor would face the same intimidation
and restrictiveness that any child of the same physical age would. Therefore, even if POCSO
does not accord protection to such class of individuals, the legislature must take steps towards
assuring the same same friendly procedures to such a class of individuals.

8
RIGEL OLIVERI Statutory Rape Law and Enforcement in the Wake of Welfare Reform Stanford Law Review
Vol. 52, No. 2 (Jan., 2000), pp. 463-508 [467]
9
NANCY FINDHOLT Legal and Ethical Considerations in Research with Sexually Active Adolescents: The
Requirement to Report Statutory Rape Perspectives on Sexual and Reproductive Health, Vol. 34, No. 5 (Sep. -
Oct., 2002), pp. 259-264 [259]
 HYPOTHESIS

The judicial interpretation of POCSO in certain cases has diminished rather than uphold the
objectives of POCSO, and has highlighted the need for developing friendly court procedures
for the mentally disabled.

RESEARCH OBJECTIVES

1. To analyse how the scope of certain provision of POCSO have been expanded, and how
certain provisions have been interpreted in a myopic way.
2. To examine the contradiction among various judgements of the courts of the country
and how courts interpret the objectives that the framers of the legislation wanted to
achieve.
3. To explore the impact of the judgements upon different sections of the society, and how
they are perceived.

RESEARCH QUESTIONS

1. Whether the scope of certain provisions have been expanded and which ones have
been contracted by the judiciary?
2. What are the points of different opinions of the courts’ judgements?
3. How are different social groups interpreting the court decisions?

RESEARCH METHODOLOGY
The methodology of research on the subject matter shall involve and be primarily based upon
the doctrinal method of research, wherein the research matter shall remain heavily based on an
approach that deals with a lot of study on textbooks, journals, articles, case laws, law committee
reports and doctrinal writings.
 TABLE OF CASES

1. State v. Aas Mohammad SC No. 78/2013

2. State v. Suman Das SC No. 66/13

3. State v. Suresh Kumar AIR 1965 SC 942


4. State v. Shiv Nand Rai SC No. 56/13 decided on 09.10.2013.

5. State v. Varun SC No. 108/13 decided on 29.10.2013.

6. State v. Vicky SC No. 147/13 decided on 07.12.2013.

7. Bhagwan v. State of Rajasthan 2015 (1) WLN 12 (Raj.)

8. Independent Thought v. Union of India (2017) SCC SC 1222

9. State v. Kuldeep SC No. 71/2014 decided on 07.03.2015.

10. Bachan Singh vs. State of Punjab, (1980) 2 SCC 684

 Aviral Singhal
22BALLB17

JUDICIAL INTERPRETATION OF THE PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT, 2012

INTRODUCTION

The POCSO Act was passed by the parliament in the year 2012 due to the absence of any
specific law in the IPC dealing with sexual crimes committed against minors. Furthermore, it
provided for many child-friendly court procedures which focused on preserving the dignity,
and security of the victim minors. One of the most peculiar features of POCSO act is the fact
that it does not use the term “rape” as mentioned in the IPC but has adopted the term “sexual
assault”. The aforementioned change has 2 broad reasons, firstly “spousal immunity”.
“Feminists argued that rape laws allowed married men to escape prosecution for raping their
wives and thereby denied sexual autonomy to married women.”10 Secondly, that “rape” wasn’t
a sexual offence, that emerged out of sexual desire, but was a form of violence against
women.11 Given these considerations, the new term “sexual assault” was adopted. Unlike many
western countries such as Canada and the USA, where the term wasn’t clearly defined, the
Indian legislature did not commit the same error and under section 3 of the act, “penetrative
sexual assault” was defined.12 However, a major challenge that was posed to the courts of the
country was that, unlike the Indian penal code, POCSO does not create any exception for sexual
intercourse with a minor wife. Under the section 375 of the IPC, exception 2, a man is allowed
to have sexual intercourse with a minor wife if she is 15 years old or above. This exception
does not find its place in the POCSO Act, where on literal interpretation, even consensual
sexual intercourse with a minor wife appears to be punishable.

10
RONALD HINCH
Inconsistencies and Contradictions in Canada's Sexual Assault Law Canadian Public Policy,
Vol. 14, No. 3 (Sep., 1988), pp. 282- 294.

11
id.

12
Ibid fn 1, sec 3
The aforementioned contradiction between section 3 of the POCSO act and exception 2 of the
section 375 of the IPC has been resolved in a rather inconsistent way by the judiciary. In the
case of State v. Suman Das the judge of the special court of Delhi did not accept the argument
that POCSO act seeks to criminalize consensual sexual intercourse with a minor wife, but
asserted that there exists no contradiction between the two laws. The judge used the IPC
definition of “assault” which states “any gesture, or any preparation intending or knowing it to
be likely that such gesture or preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal force to that person.”13 Further
“offence of “criminal force” is defined u/s 350 of IPC to mean “intentional use of force to any
person, without that person's consent, in order to committing of any offence, or intending by
the use of such force to cause or knowing it to be likely that by the use of such force he will
cause injury, fear or annoyance.”14 The judge therefore concluded that since the sexual
intercourse was not affected through “injury, fear or annoyance”, it was not in the nature of
“Assault” and section 3 of the POCSO Act was not attracted.

The same reasoning was applied in the case of State v. Suresh Kumar15. A minor girl of 16
years has eloped with a major boy aged 19, they later got married at a nearby temple and had
subsequent sexual intercourse. The judge in the present case noted “It may be stated that while
interpreting any provision of a Statute we must have regard to the fact that every part of the
statute is meaningful and effective, which is expressed in the legal maxim ut res magis valeat
quam pereat. Further, plain words should be read having due regard to their normal import,
statutory setting, professional object and insistence on standards.” The judge further stated
that the object of POCSO was to prevent “such acts of sexual assault or harassment that are
likely to bring an irreparable impact on the mental, physical and psychological health, freedom
and dignity of a child.” He concluded, that since the acts of the couple were consensual and
not contrary to any of the aforementioned objects of POCSO Act, the defendant is not guilty
of any offence.

13
The Indian Penal code, sec 351

14
Id, sec 350
15
AIR 1965 SC 942

In the case of State v. Shiv Nand Rai16 a minor girl aged 14 years eloped with a man aged 19,
they subsequently got married and engaged in sexual intercourse. The minor testified that the
parents had initially consented to the marriage however had later withdrawn due to cast
considerations, hence they decided to elope. The case is of importance because even if one
ONLY views the IPC, the defendant should have been held liable since despite being the
minor’s husband, she was younger than 15 years of age and the exception 2 of section 375 only
permits for sexual intercourse with a minor wife if she is 15 years or older. However, the court
concluded that since the minor girl was not subjected to cruelty, fear, coercion, undue influence
or intimidation, section 3 of the POCSO act will not be attracted and exonerated the defendant.
Further cases of State v. Varun17 and State v. Vicky18 were also based on the same ratio.

Hence, it is not wrong to conclude that the courts have clearly strayed away from the literal
interpretation of POCSO act and given a more “purposive” outlook to section 3 in order to
reconcile it with exception 2 of section 375 of the Indian Penal Code. However, the judiciary
is not to be completely blamed for the development of this issue. As highlighted by the
Parliamentary standing committee on human resource development, this was due to the usage
of the generic term “sexual assault”. The committee noted “It was also contended by NCPCR
that across the world such conceptualization of sexual offences was now considered inadequate
and hence the broader category of penetrative sexual offences was found acceptable. Since the
law was to be dealt with by police and lawyers, it was essential that the crimes were described
clearly. Generic terms, such as, sexual assault could cause confusion both for the investigation
agencies and the courts.”19 The impact of such an interpretation will be analysed in the
subsequent parts

16
SC No. 56/13 decided on 09.10.2013.

17
State v. Varun SC No. 108/13 decided on 29.10.2013.

18
State v. Vicky SC No. 147/13 decided on 07.12.2013.

19
PARLIAMENTARY STANDING COMMITTEE ON HUMAN RESOURCE DEVELOPMENT TWO
HUNDRED FORTIETH REPORT ON THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES BILL,
2011
 SEXUAL ASSAULT AND POWER RELATIONS

Before one considers the social impact of the aforementioned interpretation of “sexual
assault”, one must first look at the purely legal consequences of it. Since sexual assault, as
interpreted by the judiciary, can be committed only through generation of “fear, injury or
annoyance”, a variety of situations in which sex is affected through mere “power relations” is
excluded. For example, if an employer threatens to fire her minor domestic servant if she does
not have sexual intercourse with him, and out of this threat, she is forced to give her consent,
POCSO act offers her no relief as there is no “fear, injury or coercion” to her person. In fact,
the employer is perfectly within his rights to fire her whenever he likes. As highlighted by
Susan Estrich “that coercion of a woman need not involve either actual violence or threats of
future physical injury. If a man coerces a woman to engage in sex by threatening to fire her
from her job or destroy her property or reputation, he has not used force or coercion within
the definition (of sexual assault)”.20 The situation can get worse since children are even more
susceptible to intimidation and unwillingly consent to intercourse without actual “assault”.

POCSO ACT AND ADOLESCENT SEXUAL INTERCOURSE

The aforementioned interpretation has both positive and negative connotations. Liberals might
see these judgements as recognizing the right of a minor to engage in consensual sexual
intercourse and hence limiting the scope of statutory rape laws. Even the judge in the case of
State v. Suman Das noted, while interpreting the strict letter of the POCSO Act, “if that
interpretation is allowed, it would mean that the human body of every individual under 18
years of age is the property of State and no individual below 18 years of age can be allowed to
have the pleasures associated with one’s body.” As noted by Richar A. Tonry “policy
consideration (of statutory rape) has as its purpose the protection of the sexually immature
female who lacks the capacity to understand the nature and implications of the sexual act. To
achieve this, an age standard is established, below which females are considered sexually
immature and above which they are considered mature. However, past puberty (which is itself
a variable within limits) there is no assurance that every girl below a certain age is sexually
immature and that every one above it is sexually mature.”21 However, such an interpretation

20
SUSAN ESTRICH Rape The Yale Law Journal, Vol. 95, No. 6 (May, 1986), pp. 1087-1184
21
RICHAR A. TONRY Statutory Rape: A Critique Louisiana Law Review, Vol. 26, Issue 1 (December 1965), pp.
105-116
which seems liberal in the sense that it recognizes an adolescent’s right to engage in sexual
intercourse by breaking away from archaic presuppositions regarding female chastity, is only
limited to sexual intercourse “in marriage”. A close reading will show that all the
aforementioned cases regarding consensual sex between minors are ONLY in context of
marriage.

In the case of Bhagwan v. State of Rajasthan22, two minors, both above the age of 16 years,
used to have consensual sexual relations with each other “without marriage”, after which they
eloped. They first went to Bhilwara, and from there to Maharashtra to work as labourers in the
cotton fields. Upon a complaint filed by the father of the girl, the minor boy was tried and
subsequently held guilty of violating the POCSO Act as well as section 375 of the IPC, holding
that the consent of a minor is irrelevant. It was only in the revision petition that the judgement
was overturned and the boy was acquitted. Furthermore, the acquittal was not on the basis of a
lack of assault due to the absence of fear, coercion or exploitation, but merely because the boy
was a minor as well, and the court decided to show him leniency.

Therefore, sexual intercourse between two consenting minors outside marriage is still an
offence under section 375 of the Indian Penal code as well as the POCSO act. The
aforementioned judgements cannot be called “liberal” or “progressive” in any sense. Two
minors who have sexual intercourse merely in pursuance of love, or any other reason except
for marriage, can still be convicted under the POCSO Act. What the courts have merely done,
is to provide protection to the patriarchal right of a husband to demand sexual intercourse from
his wife despite her tender age. As highlighted by an article published in the Indian Express,
which goes on to say “It is necessary to examine how age is pitted against agency in the context
of elopement marriages. It appears that choice, or desire, as expressed by a woman, is
somehow intrinsically illicit when it is against parental diktat and caste or community norms,
and therefore needs to be contained and controlled. Girls who exercise active agency to defy
convention pose a threat to the established social order, and are confined by reframing consent
itself. Here, consent gets embedded in assumptions about rational choice and parental
authority, rather than choices made by women.” This shows a very hypocritical attitude of the
judiciary towards consensual adolescent sex. That is, intercourse between minors in marriage

22
Bhagwan v. State of Rajasthan 2015 (1) WLN 12 (Raj.)
is legal, while intercourse between minors outside marriage is unacceptable. This proposition
takes us to the crux of “statutory rape” law itself. Where a minor girl is presumed to not
understand the impact of sexual relations by law, but the moment she gets married, this
“presumption” suddenly gets overridden with the patriarchal rights of the husband to demand
intercourse with her. The judiciary which is supposed to be the upholders of individual freedom
and liberty, rather than resolving these issues, has further enforced them.

CREATION OF A VULNERABLE CLASS OF MINOR GIRLS

The problem with the aforementioned interpretation to reconcile the provisions of POCSO act
and section 375 of the IPC, had yet another issue. It left a group of girls between the age of 15
to 18 vulnerable to sexual offences by their husbands, due to exception clause 2 of section 375
of the Indian Penal Code. While the POCSO act prohibits all form of sexual offences against
minors, the IPC allows a marital exception in cases of wives who are aged 15 and above.
Thereby creating arbitrarily an age group of girl between 15 to 18, who could not get protection
under POCSO. This has made the social environment more conducive to child marriages and
husbands to force themselves upon their minor wives between the age of 15-18 years. Indeed,
this form of classification was arbitrary as the question “whether a girl was married” decided
whether section 3 would accord protection to a minor girl or not.

Only recently in the supreme court case of Independent Thought v. Union of India did the court
amend section 375 of the Indian Penal code by raising the age of sexual intercourse in marriage
(consensual or non-consensual) from 15 years to 18 years.23 Thereby, according the full
protection of POCSO act to married minor girls who faced sexual offences both under the IPC
and the POCSO act by their Husbands. The court held that “Sexual intercourse or sexual acts
by a man with his own wife, the wife not being under eighteen years of age, is not rape. It is
only through this reading that the intent of social justice to the married girl child, and the
constitutional vision of the framers of our Constitution can be preserved and protected, and
perhaps given impetus”

23
Independent Thought v. Union of India 2017 SCC SC 1222
 THE “MARRIAGE TO PREVENT CONVICTION FOR RAPE” DILEMMA

A less written or discussed issue that the judiciary has unintentionally created, is that such an
interpretation might also give legal coverage to paedophiles to have sexual intercourse with
minor girls on the promise of marriage and exploit them. The following case is an example of
such a situation.

In the case of state v. Aas Mohammad24, a landlord had been having sexual intercourse with a
14 years old minor, who eventually became pregnant. It was only in the 6th month of her
pregnancy that the acts of the landlord were discovered and the minor’s mother brought charges
under the POCSO Act. It was later revealed that the minor had sexual intercourse with the
landlord on the promise of marriage, and threat from the landlord that he’ll cause harm to her
family, and when she became pregnant, he refused to marry her. The court later exonerated the
landlord on the condition that he marry the minor, pay a fixed amount to her mother and build
a house for her as well, and called it an “amicable settlement”.

In the case of State v. Kuldeep a minor girl aged 17 years was engaged to a man, however, the
engagement was later broken off because the parents of the minor girl suspected that her would
be husband consumed drugs25. When the mother of the minor girl was hospitalized, the man
visited the minor and had non-consensual sexual relations with her which lead to pregnancy.
An interim bail was granted to the husband so that he could marry the minor and take
responsibility for the child, and he was acquitted of all charges.

In the case of state v. Parhlad, the victim who was a minor had eloped with her adult lover
and they had sexual relations with each other. However, their marriage wasn’t solemnized and
hence lacked legal sanctity. The court convicted the adult under the POCSO act which provided
for 7 years of minimum imprisonment. However, the court considered cases such as Bachan
Singh v. State of Punjab, that outlined guidelines on sentencing, and drew up a list of 10
mitigating factors.26 On the basis of these factors, the accused was not punished , however was

24
state v. Aas Mohammad SC No. 78/2013 decided on 13.08.2013.

25
State v. Kuldeep SC No. 71/2014 decided on 07.03.2015.

26
Bachan Singh vs. State of Punjab (1980) 2 SCC 684
still convicted under the POCSO act.

The aforementioned cases focus on only a short term solution to the problem. The victim
although gets a security for the time being but it sets an extremely wrong example in front of
the society. It appears that the judiciary has mistakenly created a legal umbrella where the
offenders can simply marry their victims in order to avoid conviction in case of pregnancy. The
then CJI had very controversially called for “respecting the wishes of a rape victim if she
chooses to marry the rapist or have the child conceived through the crime.” The CJI further
said “courts must give due regard to the personal autonomy of the victim in such cases” In
rural households, due to parental pressure and to save honour, victims often unwillingly are
forced to marry their offenders which can have many negative effects on their future life. In a
recent report it was recorded “While commenting on cases in which the judge encourages the
parties to marry, one respondent shared that victims seldom have a say in this, as it is their
parents who are convinced by the judge to enter into such compromises.”27 Women’s Aid
Organization (WAO) executive director Sumitra Visvanathan very clearly expresses the
implication of such a situation, “Forcing a raped child to marry her rapist is an atrocious
violation. She will spend the rest of her life being re-traumatised and denied all rights as a
child.” And further that “Rape is a crime. It is about power, not about sex. To even suggest for
anyone to marry their rapist is tantamount to encouraging such crimes.” In a report published
by CENTRE FOR CHILD AND THE LAW,
NATIONAL LAW SCHOOL OF INDIA,
UNIVERSITY, BANGALORE the report recorded “The victim was deaf and even if she was
in a relationship with the accused, the fact is that she had been raped. However, the judge
managed to convince her mother to get her married to the accused. In another case, the matter
came to us through the CWC when the girl had been married off to the accused as advised by
the POCSO Court and then ended up being a victim of domestic violence because the accused
was unhappy about the girl dragging him to court on a rape charge.”

27
SWAGATA RAHA Report of Study on the working of Special Courts under the POCSO Act, 2012 in Delhi,
CENTRE FOR CHILD AND THE LAW,
NATIONAL LAW SCHOOL OF INDIA, UNIVERSITY,
BANGALORE
 SCOPE OF THE TERM “CHILD”

In the recent supreme court case of Ms. Eera v. The State (Govt. of MCD of Delhi) the court
declined to offer the protection of POCSO Act to a woman whose Mental age was
approximately 6 to 8 years, however her biological age was 38 years28. The woman suffered
through cerebral palsy and was raped by a man in the year 2010. This experience caused her to
be extremely terrified of Males .The POCSO act defines “child” as any person below the age
of 18 years.29 The court declared that the clear and plain meaning of the act only applied to
individuals whose biological age was less than 18 years and “mental age” was not to be
considered. The court noted that “By saying age would cover “mental age” has the potential to
create the immense anomalous situations without there being any guidelines or statutory
provision.”

The POCSO act provides for many child friendly procedures which keep into consideration
the vulnerability, innocence and insecurity present in young children. These include medical
procedures, recording statement, making statements in front of the court and being
accompanied by an adult trusted person during trials as well as multiple breaks. Since such
provisions are made in context of the special vulnerability of children which is due to their lack
of experience and immaturity, an individual whose mental age is also that of the child shares
the same vulnerabilities and immaturity, and hence, morally should be provided with the same
benefits as that given to a child.

The aforementioned case has highlighted the need for more friendly procedures for the
mentally disabled, specially with ailments like cerebral palsy. So that they can express
themselves fully and are not traumatized by the very procedure that seeks to bring them justice.

CONCLUSION

The judiciary often to resolve short term issues loses sight of the broader picture. In the quest
to reconcile two contradictory legislations, the judiciary further added to the complications by
limiting the boundaries of legitimate adolescent sex to only in pursuance of marriage, thereby
reinforcing the historical patriarchal right of a husband to demand sexual intercourse from his

28
Ms. Eera v. The State (Govt. of MCD of Delhi) 2017 SCC SC 1206
29
POCSO Act 2012, sec 2(1)(d).
wife.

Furthermore, due to the past court cases, the judiciary erroneously lead to the creation of a
vulnerable class of minor girls between the age of 15 to 18 who were not accorded protection
under POCSO in case of sexual violence conducted against them by their own husbands. It was
only when the supreme court gave a landmark judgement in October 2017 and amended
exception 2 of section 375 of the Indian penal code that minor wives were accorded the
protection of POCSO.

In past cases, with another myopic point of view, the special courts under POCSO have
acquitted assailers if they married or offered to marry their victims. Although in the short run,
it seems plausible for settling the minor victim and providing her with security, but such aspects
seta wrong example in front of the society. It also provides a form of legal coverage sexual
offenders from being imprisoned.

Another distinct conclusion brought by the judiciary is the strict interpretation of the term
“child” as mentioned in POCSO, thereby excluding the mentally disabled individuals from its
scope even though their “mental age” is that of a young child. The aforementioned conclusion
has shed light upon the need for bringing special procedures for the mentally disabled as well.
 BIBLIOGRAPHY

1. PRATIKSHA BAXI Feminist Contributions to Sociology of Law: A Review Economic

and Political Weekly Vol. 43, No. 43 (Oct. 25 - 31, 2008), pp. 79-85

2. RIGEL OLIVERI Statutory Rape Law and Enforcement in the Wake of Welfare Reform
Stanford Law Review Vol. 52, No. 2 (Jan., 2000), pp. 463-508 [467]

3. NANCY FINDHOLT Legal and Ethical Considerations in Research with Sexually Active
Adolescents: The Requirement to Report Statutory Rape Perspectives on Sexual and
Reproductive Health, Vol. 34, No. 5 (Sep. - Oct., 2002), pp. 259-264 [259]

4. RONALD HINCH
Inconsistencies and Contradictions in Canada's Sexual Assault Law

Canadian Public Policy, Vol. 14, No. 3 (Sep., 1988), pp. 282- 294.

5. RICHAR A. TONRY Statutory Rape: A Critique Louisiana Law Review, Vol. 26, Issue 1
(December 1965), pp. 105-116

6. SUSAN ESTRICH Rape Yale Law Journal, Vol. 95, No. 6 (May, 1986), pp. 1087-1184

7. SWAGATA RAHA Report of Study on the working of Special Courts under the POCSO
Act, 2012 in Delhi, Centre for Child and the Law,
National Law Sschool of India,
University, Bangalore.

8. The Protection of Children from Sexual Offences Act 2012

9. State v. Aas Mohammad SC No. 78/2013

10. State v. Suman Das SC No. 66/13

11. State v. Suresh Kumar AIR 1965 SC 942


12. State v. Shiv Nand Rai SC No. 56/13 decided on 09.10.2013.

13. State v. Varun SC No. 108/13 decided on 29.10.2013.

14. State v. Vicky SC No. 147/13 decided on 07.12.2013.

15. Bhagwan v. State of Rajasthan 2015 (1) WLN 12 (Raj.)

16. Independent Thought v. Union of India (2017) SCC 1222

17. State v. Kuldeep SC No. 71/2014 decided on 07.03.2015.

18. Bachan Singh vs. State of Punjab, (1980) 2 SCC 684

19. Virani, Pinki “Consent and controversy” The Indian Express 12 May 2012.

20. Ghosh, Alka “Respect victim's wish to marry rapist, says CJI” The Times of India 8
March 2010.