Indian Penal Code, 1860
Sections 363, 366 and Section 6 of the POCSO Act—Kidnapping and rape of minor—Conviction—Defence plea is almost admission of entire incident regarding marriage etc. with victim and begetting of female child though there is denial about kidnapping etc.—Submission that appellant and victim being natives of rural areas, they did not have any knowledge that their free sexual mixing and marriage shall criminalise their action—Girl was 14+ when the occurrence happened and boy was also an old adolescent or a young adult at that time—Love affair between them—Nothing on record to show that appellant by hatching a conspiracy kidnapped the victim girl—Rather there is evidence to the effect that victim girl walked down to the house of appellant to accept her as his wife—When the victim gave birth to the child she was aged about 17 years 2 months and 27 days taking the age of the birth as mentioned in the birth certificate—No materials-on-record found to sustain the conviction of appellant under Section 363 & 366 of IPC—Case of non-exploitative consensual sexual relationship between two consenting adolescents though consent in view of the age of the victim is immaterial—Taking into consideration the ground reality, subsequent development of birth of a child, peculiarity of facts and especially the economic conditions of appellant and suffering of victim since the date of arrest of her husband who (victim) is managing the family of an ailing mother-in-law and a small child without any support by her parents, the court is constrained to take a humane view of the matter to do complete justice—Fit case to invoke inherent jurisdiction under Section 482 CrPC coupled with plenary power under Article 226 of the Constitution of India—Conviction set aside.
[Paras 38 to 42]
Doctrine
Ignorance of law is no excuse—Doctrine is based on Latin legal maxim "ignorantia juris non excusat" or "ignorantia legis neminem excusat"—A person who is unaware of law may not escape liability for violating that law merely by being unaware of its content.
[Para 35]
Sexual Offences
Safeguarding rights and interest of adolescents—Balance between protection and evolving autonomy is central to ensure best interests of adolescents, but the current legal framework fails to do so and unjustly conflates normative consensual acts among adolescents with sexual abuse—Instead of protecting adolescents from abuse, the law exposes those in factually consensual and non-exploitative relationship to the risk of a criminal prosecution and compromises the child protection mandate—There is a necessity of legal amendments to decriminalize consensual sexual acts involving adolescents above 16 years while ensuring the protection of children under 18 years from sexual offenses under the POCSO Act.
[Para 28]
Safeguarding rights and interest of adolescents—"Rights based approach" as a panacea for all the problems that come is not the solution, and not the just and correct approach—Sex in adolescents is normal but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman—Court propose to take a "duty/obligation based approach" to the issue in hand—It is the duty/obligation of every female adolescent to: (i) Protect her right to integrity of her body; (ii) Protect her dignity and self-worth; (iii) Thrive for overall development of her self transcending gender barriers; (iv) Control sexual urge/urges as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes; and (v) Protect her right to autonomy of her body and her privacy—It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, herself worth, her dignity & privacy, and right to autonomy of her body—POCSO Act is made gender neutral—Parental guidance and education to children is necessary—Grey area of adolescent consensual sex about which much commotion is made should be left to the discretion and wisdom of the judiciary—Court advocated for the introduction of comprehensive sexual education, emphasizing the need for all children and adolescents to receive rights-based comprehensive sexual education.
[Paras 30 to 33]