The Supreme Court recently used its special powers under Article 142 of the Constitution to uphold the conviction of a 25-year-old man for raping a 14-year-old girl without imposing a sentence. Some hailed the decision as a ‘landmark’, but it has raised serious concerns about the message it sends on child protection and justice.
In 2018, a child was kidnapped in West Bengal. Later, she was found married to the man who had raped her and gave birth to his child. The court acknowledged that a crime had taken place and upheld his conviction under the Protection of Children from Sexual Offences Act, but reasoned that sending him to jail would make the victim the “worst sufferer” because she had now built a life with the accused.
The bench of Justices A S Oka and Ujjal Bhuyan made the decision based on the report of a committee consisting of a clinical psychologist, a social scientist and a child welfare officer, which found that the woman, now 21, is emotionally attached to the accused and protective of her “small family”. Has the court interpreted her trauma-based dependence as ‘consent’ and survival as ‘choice’?
In another recent case, the Orissa High Court adopted a similar approach. Justice S K Panigrahi granted bail to a 26-year-old man accused of raping a girl he had allegedly been in a relationship with since 2019, when she was 16. The complainant said the accused had physical relations with her on the false promise of marriage and that she became pregnant twice, in 2020 and 2022, but was forced to terminate both pregnancies.
A case under the POCSO Act was filed in 2023. In 2024, the accused sought bail, claiming both families had agreed he should marry the complainant. The judge, while granting bail, remarked that the allegations, though serious in statutory terms, arose out of a “consensual relationship” between two individuals who were close in age and shared a personal bond before the case was filed and did not prima facie exhibit characteristics of force, coercion or exploitation.
While the Supreme Court’s judgement attempts to insulate itself by stating it is not to be treated as a precedent, exceptions like these rarely stay as such. Such orders seep into trial court reasoning, police investigations, and cultural discourse that already leans towards victim-blaming. It only takes one such judgement to fuel hundreds of similar pleas by offenders claiming to be part of a “small family” with their victim.
The POCSO Act leaves no room for interpretation: a child under 18 cannot consent to sex. Section 2(d) defines a child as any person below 18. Section 3 defines penetrative sexual assault. Section 29 creates a presumption of guilt. And Section 42A overrides all other laws.
Similar judgements by several Indian courts over the years have legitimised unequal relationships. These are not adolescent romances. These are situations of unequal power, age, access and agency. The law exists precisely to address that imbalance.
In the West Bengal case, the crime itself is only a part of the story. What followed reveals a deeper systemic failure. The girl’s current situation is the result of abandonment at every level: first by her family, then by the state, and finally by the court. She was failed at every turn. She did not receive legal aid, counselling or rehabilitation. Her emotional dependence on the man who harmed her was not a choice; it was a trauma response.
Any decision made in such circumstances is not a free decision; it is survival. Any factor that deprives a person of alternatives and compels them to act not by will but by necessity is, by definition, force. To mistake trauma-based emotional dependence for consent ignores the core principle of justice: the distinction between what is legally right and what is just. There can be no justice when courts send the message that punishment can be negotiated.
We live in a society where family honour is often placed above the rights of the child, where shame is transferred onto the victim, and where the system pressures her to “settle the matter”. The community often sides with the abuser, especially if he promises marriage, stability, or even remorse. There can be no greater tragedy than a legal system validating it. Treating a sexual offender as “family” is an injustice to every child who looks to the law for protection.
These cases come amid a growing and misguided push to introduce “consent” clauses into the POCSO Act and reduce the age of consent. The parliamentary standing committee, in its 2011 report on the POCSO Bill had said: “Once the age of the child has been specified as 18 years, then the element of consent should be treated as irrelevant up to this age.”
The reason is simple: a child under 18 lacks the physical, emotional, cognitive, and legal maturity to understand the consequences of sexual consent. That is why minors cannot sign contracts, vote, marry or be held criminally responsible as adults. In cases where both parties are minors, the Juvenile Justice Act applies. But when an adult man rapes a child and offers marriage as a settlement, it is a strategic escape from punishment.
Consent cannot exist without autonomy, support, real alternatives, and freedom from pressure. A child with no family support, living under the weight of stigma, ostracisation or poverty is not in a position to “choose” a relationship with her abuser. When a child is failed by her family and denied support by institutions, “consent” is not a choice—it’s a consequence.
Justice for the victim and accountability for the offender are both necessary. Courts have a duty not only to punish offenders but also to assure children that the law stands with them. Justice must not only be done but also seen to be done.
Bhuwan Ribhu is a child rights activist, advocate, author, and the founder of Just Rights for Children
(Views are personal)