PERCEPTION OF MORALITY CANNOT DECIDE CRIMINALITY

The issue that we are going to discuss has a bearing on the crucial age of a persons life ie. teenage. Teenage though not specifically determined but generally is a stage whereby a person is experiencing the hormonal and biological changes and a person is not completely adult and nor completely child. There is an increase in number of cases that are being registered under the stringent provisions of Prevention Of Child From Sexual Offences (POCSO ACT) that involves the young adults.



EXTENT OF PUNISHMENT

If a person is incriminated under provisions of POCSO then there can be a punishment of either seven years or ten years. The offences are non compoundable.


LEGALITY OF QUASHING CASES OF CRIMINAL NATURE

The general rule is that a test of public interest v individual interest is to be taken before quashing a case and if it involves the interest of public then courts are not allowed to quash the proceedings[1].The cases which are non compoundable (ie. The two parties contesting the case cannot negotiate even if they want to stop the further proceedings in respect of any arrangement as agreed between them) u/s 482 of Criminal procedure code and the case The State of Madhya Pradesh v. Dhruv Gurjar has detailed guidelines for that.



When the cases involve teenagers and affair in the tender age under provisions of POCSO Act then in many cases the route of quashing criminal proceedings is being taken by the courts because of realisation that generally the cases are real love affairs and it is the families who initiate cases without fault of the party.



AMENDMENT IN THE POSCO ACT

The courts have off late made many obiters in their judgements that parliament should amend the law appropriately and save many youngsters from the ill of the wrong implementation of the act. The parliament is bound to take the new age societal changes into account and amend the law as per real society norms. Generally our parliament is inclined more towards morality lesser towards new age reality and this is the reason that people suffer more because of this conservatism. Be it the concept of marital rape, rights of homosexual, participation of women in combatant forces the answers given by centre to the courts is on face patriarchial and based on perception of morality.



One of the example of parliaments conservatism was Hindu Code Bill as introduced by Dr. Bhimrao Ambedkar which was implemented piece by piece because the majority thought that society was not ready to accept the changes in law. The point of argument is popular perception of society should not govern the justice delivery system. Be it Allahabad High Court[2] or many judgements of Madras High court[3] the call for change in law has been made time and again.



WHAT IS AT STAKE?

This topic has a nexus with humanitarian law, right to sexual choice, perception of morality and its acceptance, psychology of teenagers as well as parenting and future of teenagers. Teenage relationship is a taboo in India and a issue is being made out of nowhere when this is caught by relatives, parents, neighbours. Choice of two person who if parents think is wrong must not be brought into legal tussle, instead a route to counsel them must be taken instead of threatening and embarrassing them with cases in court. Future of two bright teens gets marred because of perception of parents. We still have honour killings as social menace whereby families go the extent of killing of their kids for the fake honour and the rate of lodging complaints and conviction rate in such cases is miniscule. Many cases go unnoticed and no one ever knows something like this ever happened.



SOLUTION

Sexual act is not an offence in itself. Offence which have a crime element is wrong and punishable and must be so. Whenever cases of elopement and love relationship come in court the counselling of parties without litigators is very important. Counselling of parents is equally important. One infrastructural change is needed in the recording of births so that manipulation with age cannot be done. Age becomes the biggest determiner and each party runs from pillar to post to prove minority. Yes it is not advocated that one must be allowed to get away even when there are heinous and actual crimes so it must depend on facts and circumstances of each case. But the greater good of two people who are future of nation must be taken care of.



JUDICIARY HAS ADOPTED NEW AGE PERCEPTIONS ALWAYS

In S. Vardarajan v. State of Madras the court held that if the girl leaves the house of her guardians at her own will then the boy will not be guilty if their is no active advise given by him for eloping. One important observation made their was that it is only moral obligation of the boy to return the girl to her parents. So point to be focused is that if both the parties are in their teen ages, can their be any expectation from any of the two to understand their moral responsibilities and act in furtherance of that. In another case Rex v James Jarvi it was observed that if girl was capable of thinking for herself and making her own mind so even if there was taking away the guilt is not proved. Judiciary was the one which accepted live in relationship and allowed women to claim maintenance in courts of law and availing justice. In cases like Indra Sarma v Deputy Director Consolidation; Khushboo V. Kaniammal; Badri Prasad v Dy. Director of consolidation it has been held by court that just because live in relations are immoral in eyes of society does not means that they are an offence. Similar progressive views need to get established now.



CONCLUSION

The matter in hand is to save the young boys and girls from getting harassed. By new amendment in the form of counselling of parents, children and also by demarcating the difference between love affair and sexual assault clearly a lot of hassel can be minimised. This issue is society oriented, most of these cases will not arise if the parents accept the new age change of relationship and act as confidants of their children and not the decision maker of the whole life of their children. The age of consent varies hugely in nations across the world and the age bracket begins from 12 years to 20 years depending on the conservatism of the nations.



The conservatism of the society and its perception of morality must not become a roadblock of youngsters life and courts must be ready to accept the changing norms of society. Even if girl is young and boy is adult the immediate judgement of boy being guilty must not be made. Criminal element is important to establish offence not morality of society. Sexual assault and teenage affair cannot be equated on equal footing and thus many sections of IPC and POCSO which make a teenage boy an offender in the eyes of law because of the inability of the society to acknowledge child psychology is a very gross mistake and should be amended sooner.

[1] Parbathbhai Aahir @ Parbathbhai v. State of Gujrath [2] https://www.indiatvnews.com/news/india/pocso-not-for-teenage-romances-allahabad-high-court-latest-national-news-updates-2022-02-18-760241 [3] https://www.thehindu.com/news/national/tamil-nadu/amend-pocso-act-says-madras-high-court/article33700258.ece



This article is written by Poonam Maurya, postgraduate from Amity University.

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