Apex Court stated that Act defined a child as any person below eighteen years of age and “we would be doing violence both to intent and the language of Parliament if we were to read word mental into Section 2(1)(d) of the Act(definition of child)”.
Supreme Court has ruled that the biological age and not the mental age of a rape survivor should be yardstick for deciding whether or not case would be filed under the stringent Protection of Children from the Sexual Offences (POCSO) Act.
Apex Court Bench comprising of Justice Dipak Misra and Justice R F Nariman expounded that taking into account mental age of a rape survivor to invoke the POCSO would encroach upon the legislative function….to include perception of the mental competence of a victim or mental retardation as the factor will really tantamount to causing violence to legislation by incorporating a certain words to definition.
Justice Dipak Misra further added that,”By saying age would cover the mental age has potential to create immense anomalous situations without there being any guidelines or the statutory provisions. Needless to say, they are within sphere of legislature”.
Justice Misra enunciated that,”If the victim is mentally retarded, definitely court trying the case shall take into consideration whether there is a consent or not. In the certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula. It is difficult to say in the absolute terms”.
Supreme Court Bench turned down the woman’s plea seeking prosecution of the accused under the POCSO for sexually assaulting his 39-year old daughter, who doctors have found to have a mental age of a six to eight years.
POCSO was brought in force in 2012 with an intent to protect the minor victims and to avoid the re-victimisation of child at hands of the judicial system.
It provides for the special courts that conduct trial in-camera and without revealing identity of child, in a manner that is as child-friendly as possible.
POCSO stipulates that a case of child sexual abuse must be disposed of within one year from date the offence is reported.