The Protection of Children from Sexual Offences Act, 2012 (POCSO) casts a wide net of strict liability to safeguard minors from sexual exploitation. Under POCSO, any sexual activity with a person under 18 years is deemed an offence regardless of consent, reflecting a zero-tolerance policy on child sexual abuse. However, a growing concern has emerged over the criminal prosecution of adolescents engaged in consensual romantic relationships under this very law.
Courts across India have noted that many cases brought under POCSO involve “romantic” relationships between teenagers rather than predatory situations. This dilemma, of protecting children while not criminalizing normal adolescent behaviour, requires a nuanced approach, as recently exemplified by the Bombay High Court in Bail Application No. 2346 of 2024.
Background: Adolescent Romance Meets a Strict Law
The intent of POCSO is unequivocally to protect children from sexual exploitation and abuse, with stringent punishments. The law does not recognize a minor’s consent as legally valid. In practice, this means that even genuinely consensual relationships between, say, a 17-year-old girl and her 19-year-old partner fall under the same legal umbrella as heinous sexual crimes.
Under Section 2(d) of the POCSO Act, a “child” is defined as any person below the age of 18 years. Section 3 defines “penetrative sexual assault,” and Section 4 prescribes a minimum punishment of 10 years. Section 8 deals with “sexual assault” (non-penetrative), and Section 12 addresses “sexual harassment.” The law renders a minor’s consent immaterial due to the absolute prohibition under Sections 3–12.
This trend has prompted courts to voice concern that the POCSO Act is sometimes misused, particularly in consensual romantic relationships between teenagers. Judges have emphasized that while POCSO’s objective is to punish sexual predators, the object is certainly not to punish minors in romantic or consensual relationships and brand them as criminals.
A recent Bombay High Court bail order (Milind N. Jadhav J.) in Sanjay Babu Rokde v. State of Maharashtra, Bail Application No. 2346 of 2024 (order dated 17 February 2025), is illustrative. The applicant, aged 23, faced charges under IPC Sections 363 and 376 along with POCSO Sections 4, 8, and 12, arising from a relationship with a 17-year-old girl.
The prosecutrix’s own statements to the authorities confirmed the consensual nature of their time together. She stated she had eloped out of love and had been in a relationship with the applicant for two years. No allegation of force or coercion was made, and she explained she had not returned due to fear of parental disapproval.
The applicant had been in judicial custody for over four years. The Court, after evaluating the facts, granted bail, noting the long-standing consensual relationship, lack of violence, minor age difference, and prolonged incarceration.
Court’s Key Observations and Reasoning
Consensual Relationship: The prosecutrix voluntarily left her house and stayed with the applicant. Her statements reflected clear volition.
No Force or Exploitation: No physical violence or intimidation was alleged during the 10-day period the couple stayed together.
Adolescent Agency: The Court acknowledged that while the prosecutrix was legally a minor, she was nearly 17 and demonstrated understanding of her actions.
Age Proximity: The applicant was between 20–23, close in age to the prosecutrix. Their relationship was not that of an adult exploiting a child.
No Criminal Antecedents: The applicant had no prior criminal record.
Long Incarceration & Trial Delays: The accused had been in custody since 2020 with no end to trial in sight.
The Court imposed conditions to safeguard against tampering with evidence and re-offending, but found that continued incarceration would be unjust.
Consent and the Law: Recognizing Adolescent Agency
While POCSO does not legally recognize a minor’s consent, courts are increasingly treating evidence of volition as relevant for bail and sentencing. In S. Varadarajan v. State of Madras, AIR 1965 SC 942, the Supreme Court held that if a minor leaves her guardian’s protection voluntarily and with understanding, it cannot be said that the accused has "taken" her within the meaning of kidnapping laws.
Additionally, Section 375 of the Indian Penal Code (IPC) was amended in 2013 to increase the age of consent to 18 years. Clause “Sixthly” under Section 375 makes it clear that sexual intercourse with a girl under 18 is rape “with or without her consent.” Section 376(2)(i) further mandates enhanced punishment (minimum 10 years) for rape on a girl under 16 years of age.
The Bombay High Court also relied on its own precedent in Sunil Mahadev Patil v. State of Maharashtra, 2015 SCC OnLine Bom 6204, where it was held that consensual relationships between adolescents should be assessed on multiple factors, including age, violence, antecedents, and intent.
These principles were reflected again in Imran Iqbal Shaikh v. State of Maharashtra, 2023 SCC OnLine Bom 1040, where the Court emphasized that consensual adolescent relationships must be differentiated from exploitative conduct.
Towards a Reform Oriented Discourse
The Bombay High Court’s decision exemplifies a growing judicial awareness that consensual adolescent romances should not attract the same penal consequences as genuine sexual offences. While POCSO remains critical in combating child sexual abuse, the judiciary is striving to ensure that justice is not blind to context.
The judgment also encourages policy reconsideration—whether close-in-age exceptions or differential treatment for consensual relationships may be appropriate legislative reforms.
Until such legislative clarity emerges, accused persons in similar circumstances must rely on the hope that courts will continue to exercise compassionate, context-sensitive discretion—ensuring that the law protects without unjustly penalising the very young individuals it seeks to safeguard.
References & Sources
1. Sanjay Babu Rokde v. State of Maharashtra, Bail Application No. 2346 of 2024, Bombay High Court (Milind N. Jadhav, J., Order dated 17 February 2025).
2. S. Varadarajan v. State of Madras, AIR 1965 SC 942.
3. Sunil Mahadev Patil v. State of Maharashtra, 2015 SCC OnLine Bom 6204
4. Imran Iqbal Shaikh v. State of Maharashtra, 2023 SCC OnLine Bom 1040.
5. Criminal Misc. Bail Application No. 1247 of 2023 (Allahabad High Court, Order dated 05 July 2024)
Note: Khemka & Associates represented Mr. Sanjay Babu Rokde pro bono in Bail Application No.2346 of 2024 before the Hon’ble Bombay High Court. The matter was argued by Miss. Twinkle Khemka (Partner), with assistance from Miss Vidhi Dugad (Junior Associate).
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