A special POCSO court in Mumbai granted bail to a 40-year-old female teacher who was accused of sexually assaulting a teenage boy. The court noted the consensual nature of their relationship while granting bail. This decision comes in the backdrop of ongoing debates around bail jurisprudence under the Protection of Children from Sexual Offences (POCSO) Act—a strict law that deals specifically with sexual offences against minors below the age of 18.

India’s legal framework for protecting children from sexual offences is among the most stringent in the world. The Protection of Children from Sexual Offences (POCSO) Act, 2012 was introduced to address the rising concerns of child abuse, and to ensure that children under 18 are safeguarded from sexual exploitation and harassment.

However, over time, this well-intentioned law has triggered important legal and social debates—especially when applied to adolescent relationships that are voluntary and consensual in nature. The law’s blanket criminalisation of all sexual activity involving minors, regardless of mutual consent or age proximity, has led to complex questions around consent, autonomy, and misuse.

Key issues with POCSO Act

1.    Criminalisation of Consensual Adolescent Relationships:

Under the POCSO Act, all sexual activity involving individuals under the age of 18 is treated as non-consensual and criminal, regardless of context. This case demonstrated how such blanket criminalisation can lead to severe consequences for adolescents engaged in romantic relationships, particularly when they are close in age.

a.     A study by Enfold Trust reviewed 7,064 POCSO judgments across Assam, Maharashtra, and West Bengal (2016–2020). It found that 24.3% were “romantic cases,” and in 82% of these, the victim did not testify against the accused.

b.     Another study by Enfold and Project 39A examined 264 judgments under Section 6 of the POCSO Act and found that 25.4% involved consensual sexual relationships.

2.    Lack of Recognition of Adolescent Agency: 

Various High Courts have pointed out that the objective of the POCSO Act was to protect children from sexual offences, not to criminalise consensual adolescent relationships. Yet, courts continue to hesitate.

In Aakash Waghmare vs State of Maharashtra (2025), the Bombay High Court refused to quash a case involving a consensual adolescent relationship.

Despite international human rights guidance that encourages recognising the evolving capacities of adolescents, Indian courts and laws continue to treat all under-18 individuals as incapable of giving valid consent. The Supreme Court’s rejection of the “older adolescent” category and the concept of “non-exploitative” sexual activity ignores this global perspective.

3.    Judicial Inconsistencies and Paternalism: 

The Calcutta High Court’s reversal of conviction was based on a humanitarian view of the couple’s background. However, it also included moralistic remarks about female sexuality. Later, the Supreme Court dismissed the High Court’s progressive observations about adolescent identity as “shocking,” reflecting a paternalistic approach that denies adolescents any meaningful agency in matters of sexuality and choice.

4.    Disconnection Between Law and Social Reality:

Empirical data shows that a significant portion of POCSO cases involve consensual adolescent relationships, especially among those aged 16–18. Cultural acceptance of early marriage, poverty, lack of education, and absence of safe spaces often lead young people to elope or marry early. Yet, the law criminalises these acts, further marginalising the most vulnerable.  There have been several instances where the law was used by disapproving parents to file cases against teenage relationships. This has been particularly common in inter-community relationships, where social norms and family honour come into play.

A 2018 case from West Bengal triggered debates on adolescent privacy and the misuse of legal provisions by families to criminalise consensual love.

5.    Institutional Failures:

The teenagers face trauma at multiple levels—family, society, law enforcement, child protection services, and even the courts. This is stemmed not from the relationship, but from institutional responses, prolonged legal proceedings, and the loss of autonomy.

6.    Need for Structural Reform, Not Case-Based Relief: 

While both the High Court and Supreme Court tried to do justice in this specific case, they barred their judgments from being used as precedent. This highlights the limitations of relying on case-by-case exceptions. Without broader legal and policy reform, similar cases will continue to suffer under the rigidity of the current framework.

Bail in POCSO Cases

POCSO offences are cognisable and non-bailable. This means police can arrest without a warrant, and bail is not guaranteed. The burden of proof is also reversed—the accused must prove innocence.

Though the law does not provide specific guidelines for bail, Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Section 439 of CrPC) allows courts to consider factors such as:

·         Severity and nature of the offence

·         Age of the victim and accused

·         Risk of flight

·         Possibility of tampering with evidence

1.    In Dharmander Singh v. State (2020), the Delhi High Court laid down a non-binding list of factors such as age gap, nature of the relationship, elements of coercion, and behaviour post-offence to guide bail decisions in POCSO cases.

2.    In Deshraj @ Musa v. State of Rajasthan (2024), the Supreme Court granted bail to an 18-year-old boy in a case involving a 16-year-old girl. The relationship appeared consensual, and the boy had already spent five months in custody. The Court acknowledged the age gap and the need to protect individual liberty.

While courts are gradually acknowledging such complexities, bail in the early stages of a POCSO investigation remains difficult. Often, courts wait until the victim records a statement and key evidence is collected—delaying bail and prolonging custody.

Consent Under POCSO

The POCSO Act does not legally recognise consent below 18. Even voluntary sexual relationships involving teens fall under the category of statutory rape. However, recent court decisions have started to consider the nature of the relationship and the age gap when granting bail, especially if the victim acknowledges consent during official testimony.

The Way Forward

1. Close-in-Age Exemption

India could consider introducing a “close-in-age” clause that allows consensual relationships between adolescents close in age—say between 16 and 18 years—while continuing to punish exploitative or coercive acts. Countries like Canada follow such a model.

2. Differentiate Between Exploitative and Non-Exploitative Acts

The law must draw a line between harmful and consensual acts. The UN Committee on the Rights of the Child recommends not criminalising consensual, non-exploitative relationships between adolescents.

3. Respecting Adolescent Voices in Court

Courts should consider the views of adolescents themselves in cases that concern them. In In Re: Right to Privacy of Adolescents (2025), the Supreme Court asked for the young person’s input before deciding on sentencing, setting an example of adolescent-sensitive jurisprudence.

Conclusion

The POCSO Act is an essential safeguard against child sexual abuse. But its rigid application in adolescent consensual relationships has raised legal and social concerns. The need of the hour is a nuanced approach that balances protection with autonomy, and legal certainty with fairness. Lawmakers and courts must now reflect on these realities and consider reforms that align with the evolving understanding of adolescence, privacy, and justice.