Kamla’s hospital visit highlights Pocso’s reporting challenges for doctors (AI image used for representational purpose only)
In Kajendran v Superintendent of police (2023), Madras high court undertook an exercise to identify pending Pocso cases involving consensual relationships between minors and directed that such cases be examined individually rather than being treated as an undifferentiated class. Nor is it an argument that consent below 18 should suddenly become legally valid. This principle is important in the maternity ward. A doctor is not an investigating officer. Her professional responsibility is to treat the woman before her and ensure safe delivery. If the woman is an adult, and nothing is disclosed to the doctor suggesting sexual abuse, the fact that the estimated date of conception falls before her 18th birthday should not automatically transform the treating doctor into an investigator of a possible historical Pocso offence. This is not an argument for creating a ‘Romeo-and-Juliet’ exception to Pocso by judicial fiat. The age of consent is a legislative choice and, until Parliament changes it, courts must respect it. The question is how should the state respond when the discovery of the alleged offence is substantially delayed, the child has since become an adult, and the very person whom Pocso was intended to protect does not want the machinery of criminal law to destroy her present life? The answer cannot lie in giving doctors a discretion to decide whether an adolescent relationship was sufficiently consensual or benign to warrant reporting. Nor should police be given an unfettered discretion to decide which cases deserve prosecution. Both approaches carry risks of inconsistency, arbitrariness and, potentially, abuse of power.
A woman who knows that her pregnancy may trigger a police inquiry into an earlier relationship may hesitate to seek treatment or may fear disclosure of deeply personal information.
Suppose medical records establish that Kamla’s pregnancy must have begun when she was 17 years and eight months old. Sexual activity with a person below 18 is an offence under Pocso, irrespective of the minor’s consent. Supreme Court addressed a similar issue in Dr Sr Tessy Jose vs State of Kerala (2018), involving doctors who treated a minor who became pregnant but was 18 at delivery. In X vs Principal secretary, health and family welfare department (2022), Supreme Court balanced Pocso reporting requirements with a minor’s privacy and reproductive autonomy. The law may treat both as offences when one participant was below 18.
The court held that Section 19 requires “knowledge” of a Pocso offence and does not compel doctors to investigate or infer one from the circumstances. This may sound like an unusual encounter, but it exposes a difficult consequence of the Protection of Children from Sexual Offences Act (Pocso). But by the time the pregnancy is discovered or the child is delivered, she may have become an adult, married to the young man concerned and living an established family life. Criminal liability cannot rest on such an inference. It allowed doctors, in specified circumstances, to withhold her identity, recognising that rigid reporting could deter adolescents from seeking safe medical care. But, should the criminal justice system pursue every such case in the same manner, regardless of the circumstances in which it arose and the life that has subsequently developed? There is a substantial difference between a case involving force, coercion, exploitation, trafficking or a substantial disparity of age and power, and a relationship between two persons of nearly the same age which has subsequently resulted in a marriage and a family. But the consequences of prosecution need not be considered in a vacuum.
Because information about the earlier relationship reaches police, but suppose an FIR is registered. Because the girl was below 18 at the time, the young man may face prosecution for an offence which the law regards as complete. Nor should marriage become a defence against a Pocso charge.
The fact that the couple is now married does not retrospectively legalise the earlier sexual relationship.