Delay by person under trauma in reporting rape of minor not crime: Delhi High Court

New Delhi: The Delhi High Court has ruled that the delay by a person due to trauma or social oppression in reporting a minor's sexual assault was not an offence under the POCSO Act.

The high court, therefore, set aside the prosecution of a woman for allegedly failing to timely report the sexual assault on her 10-year-old daughter by the father and cousins and said the POCSO law did not intend to criminalise delayed reporting in a state of duress.

Justice Swarana Kanta Sharma in an order on Aprill 21 observed the mother too was a victim of physical abuse and emotional isolation and she eventually gathered the courage to initiate legal action at a "great personal risk".

"Section 21 of POCSO Act, for instance, is intended to prevent suppression of sexual offences and ensure timely action in the best interest of the child," the court said.

The verdict went on, "It is not meant to penalise those who, despite personal vulnerabilities, ultimately do report the crime. If judges begin to treat delay and silence–born out of trauma or social oppression–as criminality, we risk turning the protective intent of law into an instrument of oppression itself. Justice, however, cannot be sacrificed at the altar of technicalities."

The woman challenged the trial court's December 2023 order framing charges against her under Section 21 (failure to report or record a case of sexual offences against children) of the Protection of Children from Sexual Offences (POCSO) Act.

"Framing charge for the offence under Section 21 of POCSO Act against the petitioner...would cause grave prejudice to not just the petitioner who herself is a victim of domestic violence, but also to the minor victim who is dependent upon her mother for support. Thus, the charge framed against the petitioner for offence under section 21 of POCSO Act, by virtue of impugned orders, is set aside," the court held.

In January 2020, the woman reported her daughter's ordeal to the police, which alleged in January 2020 itself, she made three PCR calls on different days alleging physical assault by her in-laws but made no reference to the sexual assault of her daughter.

The high court recorded details of the FIR and the survivor's statement which revealed a "deeply disturbing environment" in the household, marked by repeated incidents of sexual abuse of the minor girl by close family members and the physical abuse of the woman.

Drawing a distinction between non-reporting and delayed reporting, the high court said it was evident the petitioner did not shield the accused and her initial doubt in believing such allegations reflected a "complex psychological response shaped by years of abuse, dependency and survival".

Law must recognise hesitation not as guilt but as a human response to a deeply complex situation especially when stigma around reporting sexual violence–particularly incest–was profound and socially devastating in the country, it added.

The order added, "The law must be applied with sensitivity to the lived realities. The object of this provision is not to criminalise delayed reporting in circumstances of duress, especially by individuals who are themselves survivors of violence."

In the present case, the order recorded, the delay was explained by the abuse the woman herself endured at her matrimonial home.

"The absence of social and familial support, and the initial disbelief in such allegations that understandably would have clouded her perception. But it cannot be ignored that eventually, it was the petitioner only who ensured that the offence committed against her daughter came to light and legal action was initiated," the court observed.