K KannanKamla had just gone into labour. Her young husband, Saravanan, rushed her to a maternity hospital. At the admission desk, the duty doctor held out her hand and demanded, “Aadhaar?“Kamla, 18 and 4 months?”“Yes, doctor,” Saravanan volunteered.The doctor looked at him suspiciously. “Are you the father-to-be?”“Yes.”Kamla was petrified. She had come to the hospital to give birth, not to answer questions about her age.This may sound like an unusual encounter, but it exposes a difficult consequence of the Protection of Children from Sexual Offences Act (Pocso). 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. 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.What, then, is the doctor’s duty?Section 19 of Pocso casts a mandatory reporting obligation on any person who has “knowledge” that an offence under the Act has been committed. Failure to report is punishable under Section 21. The provision is deliberately stringent. Its purpose is understandable: a child who is sexually abused must not be left without the protection of the law merely because adults around her choose to remain silent. But there is a difference between knowledge of an offence and an inference that an offence may have occurred.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. 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. Criminal liability cannot rest on such an inference.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. 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.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. It allowed doctors, in specified circumstances, to withhold her identity, recognising that rigid reporting could deter adolescents from seeking safe medical care.But suppose an FIR is registered because information about the earlier relationship reaches police. The young man may face prosecution for an offence which the law regards as complete because the girl was below 18 at the time. The fact that the couple is now married does not retrospectively legalise the earlier sexual relationship. Nor should marriage become a defence against a Pocso charge.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. The law may treat both as offences when one participant was below 18. But the consequences of prosecution need not be considered in a vacuum.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. This is not an argument for creating a ‘Romeo-and-Juliet’ exception to Pocso by judicial fiat. Nor is it an argument that consent below 18 should suddenly become legally valid. 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 better course would be to clarify the meaning of “knowledge” under Section 19 and reinforce the principle laid down by SC: a medical practitioner is not required to investigate or reconstruct a past sexual offence merely from the patient’s age or gestational history. Where, notwithstanding that principle, a case is reported, and a prima facie Pocso offence emerges, the law could provide an appropriate judicial screening mechanism for exceptional cases involving near-age consensual relationships. The relevant considerations could include the relative ages of the parties, the circumstances of the relationship, the absence or presence of force or exploitation, the present age and wishes of the woman, and the likely consequences of continuing the prosecution.Such a mechanism would not erase the offence. It would recognise that criminal justice is not merely about identifying a statutory violation; it is also about deciding what justice requires in the circumstances of the case. This is important because the woman who stands before the state at 18 years and four months is not necessarily the same person whom the law encountered, or sought to protect, at 17 years and eight months. She has acquired the legal capacity to make decisions about her body, her relationships and her family. Her voice cannot retrospectively make the earlier conduct lawful, but it should not become irrelevant either.Pocso must remain uncompromising where children are exploited or abused. But a protective law must also be capable of distinguishing between the vulnerable child who needs rescue and the adult woman who, years—or even months—later finds herself asking the state not to dismantle the life she has chosen. The challenge is therefore not to weaken Pocso, nor to lower the age of protection by judicial interpretation. It is to prevent a rigid application of the law from producing a consequence that the law itself never intended.(The writer was formerly a judge of the Punjab & Haryana high court)
