In the case of ABC v. State of Maharashtra [Criminal Appeal No. 147 of 2020, Pronounced on 5 April 2021], where the appellant argued that there was a consensual relationship between the minor victim-girl and the appellant, the Court held that as a minor her consent for sexual act is immaterial.
The facts of the case are that the alleged sexual incident took place between the months of December 2016 and January 2017. As a result of the sexual incident, the girl conceived and delivered a baby. The appellant has been charged under Section 4 (punishment for penetrative sexual assault), Section 8 (punishment for sexual assault) and Section 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences Act, 2012, along with Section 376(2) (punishment for rape) of the Indian Penal Code, and Section 3 (punishment for offences of atrocities) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The Additional Sessions Judge, Pune, rejected the prayer of the appellant to release him on bail. Subsequently, the appellant approached the Bombay High Court with this appeal. The counsel appearing for the appellant argued that prima facie no case can be made out against the appellant – this is because at the time of the incident the victim girl was aged about 16 years and 5 months, so she was maturated and her relations with the accused were consensual. It was also submitted that the mother of victim girl pressurized her to lodge the FIR against the appellant.
The Court while dismissing the appeal for bail observed that “The victim was minor at the time of alleged incident and during that period she conceived and delivered a baby. Her consent for the sexual act was immaterial.” The Court also noted the victim’s statement recorded under Section 164(5) of the Code of Criminal Procedure which indicated that she never provided her consent to the appellant for sex.
– Aakriti Chokhani, Advocate & Associate – POSH at Work & Vaishali Jain, Paralegal – POSH at Work