POCSO Offence Is Committed Against Society, Accepting Defence Of Subsequent Marriage With Victim Will Defeat Purpose Of Act: Madras HC

Justice P Velmurugan observed that the offence under the POCSO Act was an offence against the society and not just the individual. He added that if the defence of subsequent marriage is accepted and the accused is acquitted, it would defeat the whole purpose of enactment of the Act and would lead to disastrous consequences.

“The offence under the POCSO Act is not against individual and it is against the Society. Hence, the subsequent marriage between the accused and the victim, will not take away the offence committed by the accused when the victim girl was a child. If the defence of subsequent marriage or the elopement is accepted, then the purpose of enactment of the POCSO Act would get defeated. In case this proposition is accepted, in my opinion, it will lead to disastrous consequences,” the court observed.

Though the accused prayed for a lesser sentence saying that the victim was pregnant and there was no elder to take care of her, the court noted that it did not have any authority to give a punishment lesser than the one prescribed under the Special Act. The court thus sentenced the accused to undergo minimum sentence of 10 years simple imprisonment and to pay a fine of Rs. 1,000.

The court was hearing two criminal appeals. One was filed by the accused challenging his conviction for offences under Section 363 and 343 IPC. Another appeal was filed by the State against the acquittal of the accused for offences under the POCSO Act.

The accused submitted that he and the victim were in love. When the families came to know of this, the girl's family made arrangements to get her married to someone else. Following this, the girl, on her own, approached the accused who took her to his relatives house. After knowing that the victim's parents had given a police complaint, the accused brought her back to her native. The case was registered under Sections 343, 363 IPC and Section 5(1) read with Section 6 of the POCSO Act.

The accused submitted that the victim had never spoken about physical relationship and thus the charges levelled against the accused for the offence under Section 5(1) read with Section 6 of POCSO was unsustainable. It was argued that there was no material to show that there was a penetrative sexual assault on the victim girl. He submitted that the prosecution had filed a false case and since the prosecution had not substantiated the charges levelled against him with oral or documentary evidence, the trial court rightly acquitted him. With respect to the charges of wrongful confinement and kidnapping, the accused submitted that the victim had left the home voluntarily and approached the accused and thus the offences was not made out.

The State submitted that the victim was 17 years old at the time of the occurrence and was a child as per the definition under the POCSO Act. Thus, the state argued that, being a child, there was no question of elopement or consent. Since the accused had taken the victim out of the custody of her parents without their knowledge, the offence under Section 363 and Section 343 was attracted.

With respect to the charges under the POCSO Act, the State submitted that the victim, in her statement under Section 164 CrPC, clearly stated that the accused had taken her to his relative's house in Mysore, where they were together. The State also relied on the medical evidence, which stated that the victim's hymen was not intact. Thus, the State argued that the acquittal of the accused under the POCSO Act warrants interference.

The court agreed and observed that since the victim was below 18 years at the time of occurrence, she was a child and thus there was no question of elopement and consent. The court noted that there were no merits in the appeal filed by the accused and dismissed his appeal. The court also noted that even if the intention of the accused was to safeguard the victim from an alleged forced marriage, he should have intimated it to the concerned authority to stop the marriage. The court also noted that the accused had, instead, taken the victim to his relative's house.

“Even assuming that the victim only voluntarily left her home and approached the accused due to fear that her parents would give her into marriage with some other person, the accused ought to have informed the same either to the police or any other competent authority or Social Welfare Officer. Now a days, the youngsters very well aware that when two adult persons who were in love with each other and if their parents arranges marriage against their wish, they can approach either police or they can seek help from the concerned authorities through social media,” the court said.

With respect to the charges under the POCSO Act, the court noted that though the victim had not used the exact words of physical relationship, she had used a diplomatic language to say that they were together. The court noted that the victim might have used such a diplomatic word due to shyness or embarrassment since the statement was recorded by a male Magistrate.

From the materials, the court concluded that the accused had taken the victim away from the lawful custody of her parents and that the couple had a physical relationship, which was confirmed by the medical evidence. Thus, noting that the act committed by the accused fell under Section 3 punishable with Section 4(1) of POCSO, the court reversed the order of the Special Court and convicted the accused.

Counsel for Appellant: Mr. T. Shanmugam

Counsel for Respondent: Mrs. G. V. Kasthuri Additional Public Prosecutor

Case Title: Vijayakumar v. State

Citation: 2025 LiveLaw (Mad) 161

Case No: Crl.A.Nos.56 of 2023 and 368 of 2025