Bangalore: In a crowded corridor on the dingy third floor of Bangalore’s city civil court complex, Anil stood perplexed, unable to decide which of the dozen rooms to enter. The 23-year-old construction worker had been frequenting the court for two and a half years. 

“Despite that, I get confused,” he told Article 14. “This is a different world. I am not even sure why I am here,” said Anil, whose second name has been withheld to ensure his privacy.

Anil was charged with rape and child sex abuse under the Protection of Children from Sexual Offences Act (POCSO) in 2022. 

The law defines a “child” as anyone below the age of 18 years and criminalises all forms of sexual acts with a child. Anil got in trouble because his wife, Gowri, is 17. 

Gowri was 15 when she asked him to marry her.

For decades, child rights activists fought hard for a separate law against child abuse. 

In 2012, the POCSO Act was enacted, which widened the definition of sexual violence and incorporated child-friendly procedures for reporting, investigation, recording of evidence, and trial. Many termed it “pathbreaking” but noted that punishment for failure to report the crime, even among consensual partners, came with its own complications. 

According to the National Family Health Survey-5 (2019-21), which collects data on fertility, family planning, mortality, and maternal and child health, 39% of women had sex for the first time before they attained 18 years. 

When Gowri asked Anil to marry her, she was unaware he would be on the wrong side of the law. Neither did Anil. “I had no clue it was a crime even if the girl is ready and eager to be my wife,” said Anil, settling down with a cup of tea in the court’s canteen. He said he only found out when the police dragged him out of their house, based on an anonymous complaint. 

“When I was a judge, I would say about 80% of the POCSO cases I got to see were cases where the couple wholeheartedly consented to be with each other,” said Justice P N Prakash, a former judge of the Madras High Court who retired in January 2023. 

Of the two dozen people, including policemen, doctors, retired judges and social workers, interviewed for this story from four cities, everyone agreed that consensual relationships involving minors should not be criminalised, but they also recognised that POCSO is necessary for genuine cases of child abuse. 

Therefore, if consensual cases were handled by sensitive police personnel, judges, or doctors, they would get off easy. But if the couple’s case were to land in front of someone who would strictly interpret the law, they would carry the burden of having a criminal case against them. 

The minor in the case is not prosecuted. The assumption is that the minor was taken advantage of. Under section 4 of the POCSO Act, punishment for penetrative sexual assault is a minimum of seven years. And for sexual assault it is a minimum of three years. If both are minors,  they will be prosecuted under the Juvenile Justice (Care and Protection of Children) (JJ) Act.

“It comes down to whether we are in a good mood on the day we get a report of a consensual relationship, whether we have put in three consecutive night shifts or whether we have been working for 18 hours straight without a meal,” said a police officer from Bangalore on condition of anonymity, as he is not authorised to talk to the media, adding that the police tried to be sensitive in most cases. 

“In short, it is a matter of luck,” said the police officer. 

Decriminalising Teen Sexual Relationships

In early 2022, when Asra Garg was promoted to the Inspector General of Police (South Zone) in Tamil Nadu, he said his department noticed that the number of consensual affairs and marriages among teenagers was very high.  

Studies such as one by the Center for Child and the Law at National Law School showed that more than 50% of these cases—across the country—were filed by families of the girl who “disapproved of the relationship because of factors such as caste-class differences, the girl eloping, or becoming pregnant”. 

Arresting a young person changes his whole life trajectory, Garg told Article 14. 

Officers working under Garg started using section 41 (A) of the former Criminal Procedure Code (CrPC) (or section 35 of the Bharatiya Nagarik Suraksha Sanhita) for many of these cases, according to which police conduct a preliminary inquiry to determine the necessity of arrest.

“We wanted lawful ways to keep young people from getting entangled in lengthy criminal procedures,” said Garg, now IG (North Zone).

The provision lets a person offer clarification in certain cases before an arrest is made, thus reducing the automatic arrests.

A few months after they began using section 41A, a POCSO committee of seven Tamil Nadu High Court judges held a meeting in Chennai. Garg was asked to present to the Committee the new method he had employed to keep criminalisation limited to cases where necessary. 

Justice Prakash was the Chairperson of the committee, which endorsed the procedure. 

In December 2022, the DGP’s office sent a circular stating that the investigating officers can issue summons to the suspect for interrogation in cases of consensual relationships with minors, but arrest under POCSO should be made only with the permission of the superintendent of police or the deputy commissioner.

Justice Prakash said this has kept young boys from being criminalised and reduced the burden on the courts. 

According to a 2022 report by the think tanks Vidhi Centre for Legal Policy and Justice Access and Lowering Delays in India (JALDI), on average, a POCSO case takes 509.78 days to resolve.  

“The time, energy, human resources, and financial outlay involved in arresting someone is immense," said Vidya Reddy, co-founder of the Chennai-based nonprofit organisation Tulir, which works on the prevention of child abuse. “The police and courts can direct those energies elsewhere more productively,” she said. 

Anil spent eight months in jail, during which time Gowri’s mother died. So, his young wife spent those days trying to make ends meet. 

Anil said he saw a ray of hope when he was informed of Tamil Nadu’s experiment with not slapping criminal charges against non-exploitative relationships. 

“No other man should go through what I went through,” he said. 

Anil found it hard to talk about when he was arrested, often giving monosyllabic answers. He said he didn't want to think of “those times” anymore. 

Teenage Relationships & Marriages

During the first COVID lockdown in April 2021, Anil said he received a call from an unknown number on his phone. 

When he answered, the caller hung up. 

After multiple such calls, when Anil threatened to block the number, a meek female voice said, “Hello”, he recalled. That was the first time Anil spoke to his future wife, Gowri. 

“She seemed scared and excited at the same time,” he said about the first time they spoke on the phone.

Anil worked with a construction crew on the same street where Gowri lived with her mother in a one-room mud house at that time. She had noticed him at work, asked one of his colleagues for his number and mustered up the courage to call him from her mother’s mobile phone.

“He had very kind eyes,” Gowri told Article 14 over a phone call. After four months, they stood inside the one room of the house, exchanged garlands in front of Gowri’s relatives and fed each other jalebis, Gowri recalled. 

“We lived happily until Anil was arrested six months later,” she said.

Gowri’s mother was an alcoholic and did odd jobs. Her father had abandoned them when Gowri was a toddler. When Anil returned from work one rainy evening, his mother-in-law demanded money from him. “I don’t earn a lot of money. I work for a contractor who gets me odd construction jobs,” said Anil. 

When Gowri refused to give her mother the money, she called the police. 

Anil was arrested in front of his colleagues, Gowri’s relatives and his employer. 

“The police could have been discreet about it, but they made such a big show of the situation,” he said. He was sent to jail for eight months before he made bail after Gowri’s statement in court that the relationship was consensual and non-exploitative. 

A Decriminalisation Success

It has been two years since Tamil Nadu began decriminalising consensual relationships between consenting adults. 

“It will take some time to be fully understood by everyone in the system,” said Vidya Reddy of Tulir, even as she called the circular “pathbreaking”. 

Reddy said each jurisdiction was interpreting the circular in its way. 

“Some might even be a little too carte blanche with it,” she said, adding that if a 16-year-old was in a relationship with a much older man like, say, a 47-year-old, that has to be termed exploitation. “The consent of the 16-year-old will be suspect at that point,” she said. 

Garg said the success of their initiative rests on the fact that each case was handled under the supervision of senior officers. He also said that junior officers were given regular training.

Justice Prakash said that Tamil Nadu was one of the more prosperous states, but he had seen situations in other states where the police asked the accused even to pay the fuel for the police vehicle used to arrest them. 

“In those situations,  the power the police wield over the accused is immense,” he said, pointing out that the police might not always be well equipped to handle cases sensitively. 

Replicating The Tamil Nadu Model

In Meghalaya, 10% of all pregnancies are teenage pregnancies, according to data from the state health department. 

“One of the main reasons for a teenage girl to avoid regular prenatal care is fear of POCSO,” said Shaibya Saldanha, a gynaecologist who is a consultant on maternal and child health with the government of Meghalaya. 

Villages in the hilly state of Meghalaya are far from each other and not necessarily well connected, making it more challenging for healthcare professionals to reach those in need of care. Moreover, abortions are frowned upon. 

“This made us look at the Tamil Nadu model,” she said, adding that they are in talks to understand how to replicate the Tamil Nadu model in Meghalaya. 

Priya & Ravi: Mandatory Reporting In Hospitals 

Priya had severe labour pains during a chilly Bangalore morning in October 2023. 

Her husband Ravi hailed an auto rickshaw and rushed her to the nearby K C General Hospital in Malleshwaram, central Bangalore. 

“As soon as I saw her, I knew she was barely 16 years old,” said Veena, a gynaecologist who goes by one name. 

This meant that under Section 19 of the POCSO Act, Veena was mandated to report to the police. 

Failure to report such an offence is punishable. 

“I hate to spend time filling out forms when I know I can be of better use to the patients,” she said but confessed she had little choice. 

But since Veena repeats this procedure so often, she knows who to call. 

“I call someone I am sure will be sensitive to the situation,” she said. 

Before the police could arrive, Priya gave birth to baby Vishnu. 

“Ravi was elated,” said Veena. “He brought fruits for his wife and sweets for other patients in the entire ward.” 

By the time she could be fully conscious, a lady constable was whispering in Priya’s ear that her 26-year-old husband might be arrested soon. 

“I didn’t know which feeling was more overwhelming,” Priya said. “Of becoming a mother to a healthy boy or of hearing that my husband might be arrested.”

However, police who had come to the hospital to arrest Ravi ensured he never left the premises. “We could not separate the father from his newborn son,” said a concerned police officer, who spoke on condition of anonymity as he was not authorised to speak on behalf of the police force. 

Priya was very weak and needed more medical attention. 

Ravi took care of her tirelessly, said Veena. 

“The way he cared for his sick wife and his newborn son and was still available to help others in need made other patients adore him,” said Veena. 

The police would visit the family in the hospital every morning. 

The police issued a notice against Ravi only after Priya’s parents came from their village on the Assam-Meghalaya border to take care of their daughter, almost 15 days after Vishnu was born. The police officer said the paperwork in Raju’s case was completed as required.  They had decided to use section 41 A of the former CrPC, which is one of the ways to avoid arrest. 

“I would say we were saved by the kind police personnel and efficient doctors,” said Priya, sitting in her two-room house on the first floor of a narrow building with her five-month-old son. 

Priya’s parents said they did not understand where their son-in-law had gone wrong. 

“They both got married with all our consent, in front of all the relatives,” said Asha, Priya’s 42-year-old mother, who had also married when she was 15.  

For many families across the country, marriage is when the couple makes a commitment in front of their loved ones, said Shruthi Ramakrishnan, Associate Director of Research at the Bangalore-based non-profit Enfold. 

Priya and Ravi have not registered for marriage even now.

When Ravi, who used to work as a waiter in a small restaurant, was making the rounds of the police station in order to respond to the notice to appear before a concerned police officer, the family dove into their meagre savings to cover daily expenses and legal costs. 

“We herd cattle back in our village and do not have a lot of savings,” said Asha. 

When Article 14 visited her in Bangalore, she said they had brought fruit for their grandson with the last of their savings. 

Ravi was never arrested but his criminal case pushed him knee-deep in debt. 

“He used to be so cheerful and happy. Now he is constantly worried,” said Priya. 

The expenses of raising a child, along with legal costs, made him take up multiple odd jobs. 

Courts & POCSO

High Courts across the country (here, here & here) have raised concerns about consensual, non-exploitative teenage relationships for a few years now. 

Around the time that the Tamil Nadu police received the circular about not arresting young people in non-exploitative relationships, in December 2022, former Chief Justice of India DY Chandrachud also urged the age of consent under POCSO to be reconsidered.

However, in August, a two-judge bench of the Supreme Court reinstated the conviction of a 26-year-old man under POCSO by overturning the judgement of the Calcutta High Court, which had earlier suggested that an exception must be carved out for "non-exploitative" sexual acts among older adolescents. 

“As they say, the law is blind, not judges. But, as judges, we have to be blind to certain realities sometimes,” said the district court judge in the National Capital Region. 

The judge asked to be anonymous as they could not speak to the media. “No matter how much I want to acquit the boy in certain cases, I am not allowed to do so by law,” the judge said.

Ruchi & Sohail: The Kindness Of A Judge

Ruchi and her boyfriend Sohail were saved by the generosity of one such judge in Bangalore, Ruchi said over the phone. 

One summer afternoon three years ago, Ruchi, then 17, was browsing Facebook on her phone when the application suggested she “friend” Sohail, her 20-year-old neighbour. She did. In the coming weeks, the couple began chatting on Facebook. 

“We didn't realise when we fell in love,” she said. 

Ruchi’s parents are software engineers who live and work in Whitfield, just off Bangalore. They forbid her from having a relationship with a Muslim boy. “They tried everything—locked me up in a room, took away my phone and even made me meet boys from my own caste,” she said. 

When all else failed, Ruchi’s parents filed a POCSO case against the boyfriend. When the police came to arrest Sohail, his parents were outraged. 

“He was studying to be an engineer,” Ruchi said. “They stopped funding his education.” 

“We stood before the judge and poured our hearts out,” she said. 

The judge invited Ruchi’s parents to speak with her and convinced them to drop all criminal charges. 

“The police could have done that job, but they were only too keen to arrest a Muslim boy,” she said. 

(Raksha Kumar is a journalist reporting on issues of social justice.) 

Names of all the young people caught in POCSO cases have been changed.

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