DH illustration: Deepak Harichandan
With the increase in number of complaints being filed under the Protection of Children from Sexual Offences (Pocso) Act, 2012 there has been a growing sense in the courts that the Pocso Act is being misused, and that this needs to be curbed. There is also the argument that many of the cases arise out of consensual adolescent relationships.
This issue has taken a new direction with the Supreme Court in its judgement of January 9, 2026, in State of Uttar Pradesh v Anuruddh, where the question was whether at the stage of bail, the age of the victim could be considered and whether a defense could be raised by the accused that the victim was a major.
The Court has been observing in a series of cases that there are frequent contradictions in the recorded age of victims and a false depiction of majority as minority, often leading to the weaponisation of the Pocso Act against young couples in consensual relationships.
In this case, the Supreme Court held that the determination of age of the victim is a matter of trial and could not be done at the stage of bail. If the question of age is raised at the stage of bail, it is only open for the Court to take a prima facie view as to the age of the victim, not one on the correctness of the documents since that would amount to a mini trial.
While upholding the bail granted to the accused in this case, the Supreme Court used this judgement to raise alarm bells to say that the Pocso Act is often misused, where the age of the victim is misrepresented to make the incident fall under the stringent provisions of the law, or in instances where the law is used by families in opposition to relationships between young people.
It observed that often Pocso cases were filed at the behest of a girl’s family objecting to romantic involvement with a young boy due to which the young boys languished in jails. With these observations, it recommended the legislation to introduce a Romeo-Juliet clause exempting genuine adolescent relationships from the Act.
Romeo-Juliet clauses are a welcome consideration, and certainly a step in the right direction. This is a legal provision exempting coverage of the law where teenagers are in consensual sexual relationships and the age difference between them is not more than three or four years. In such an instance, a Romeo-Juliet clause would provide an exemption to the age of consent under 18 years.
Key provisions for such exemptions would be: (a) that the relationship must be consensual, without violence or intimidation; (b) the members must be adolescents over 14 or 16 years of age; and (c) the maximum age difference between them must be 3 to 4 years.
In the Indian context, the variables that would need to be examined are what the age of consent would be in such a case, whether it should be 16 years or lower, and also what the maximum age difference should be.
In many countries, the age difference is three years, and in other countries the maximum age difference is four or five years. The law would also need to provide as to how consent would be established in such cases. Hence, before introducing any Romeo-Juliet clause, there is a serious need for an empirical study of cases filed under the Pocso Act, which studies the ages of the parties involved and identifies cases where there is express consent.
Reaching a consensus regarding the age of sexual consent or the maximum age difference is a difficult task, because the law must protect both sexual freedom for young persons and sexual indemnity in consensual relationships.
Introducing the Romeo-Juliet clause could be fundamental in protecting legal rights, freedom and autonomy for adolescents and young persons as long as adolescents have consented to have sexual relations with a person close to them in age, so that there is no power imbalance and coercion.
Such law reform also needs to be accompanied with sex education and awareness for adolescents to ensure that they fully understand the meaning of consent in sexual relations.
While this is a positive development and a progressive direction for law reform, there are serious areas of concern. Repeated observations are made by the courts that Pocso complaints are false and that the law is being misused. This has been raised by the High Courts and the Supreme Court not only to imply that girls’ families are filing cases when they are unhappy with their relationships, but also to observe that complaints can sometimes be false when they are filed against close relatives including fathers, uncles or other relatives for child abuse.
In many such cases, courts have made observations that the Pocso Act is being misused. Such observations are dangerous, as they have the effect of casting doubt on the use of the entire legislation and affects genuine complaints that are filed. This has happened in the case of Section 498-A concerning domestic violence, of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989. Such observations are harmful and affect women and girls disproportionately.
While we explore progressive options for law reform, let us also be cautious and restrain blanket claims of misuse of the law, because the ultimate object of the law is to protect minors and adolescents from sexual assault and not cast doubt in every case. Let us not throw out the baby with the bathwater.