Authored By: Bhavya Pathania
Himachal Pradesh University Institute of Legal Studies
INTRODUCTION
The law, a supposed bastion of justice, can often feel like a weaponised tool, wielded not for fairness but for a personal vendetta, its true purpose diluted by the very humans tasked with its impartial application.
The POCSO (Prevention of Children from Sexual Offences) Act, 2012 was enacted to protected the children from sexual crimes. Section 2 (1) (d) of the Act defines child as any person below the age of 18 [1]. The act increased the age of valid consent from 16 to 18 years. The Act also criminalized any form of sexual conduct towards a person who has not yet attained the age of majority. However, such stringent expression of law has led to the exploitation of people in close age relationships or even in consensual relationships. The statute has become a tool for weaponization and is being misused frequently. To protect the rights and interests of such individuals, the Supreme Court has, in a recent case highlighted the need for introducing the Romeo Juliet Clause. In Alakh Alok Srivastav v. UOI AIR 2018 SC 2440, the apex court stated that the objective of the act was to protect the children so that he/she does not feel a sense of discomfort or fear and to create a child-friendly atmosphere [2].
NEED FOR SUCH REFORMS- ‘THE GREY AREA’
The courts and legal experts have time and time again expressed the need to introduce such a clause which grants protection to teenagers or individuals in close age relations or even consensual relationships as a matter of fact.
The main purpose for introducing the POCSO Act was to protect teenagers from exploitation, and not to criminalize teenage romance. Somewhere between 2012 and the present date, we have forgotten the purpose of this act and a number of false cases have been registered, most in which, the girl is treated as the victim and the boy as perpetrator, which is baffling, considering in cases where both are parties to the relationship are teenagers, both shall be considered as victims vis-à-vis offender.
An analysis by NGO Enfold India, of POCSO cases from Assam, Maharashtra and West Bengal had revealed that 24.3% of all POCSO cases studied were “romantic” cases, between consenting adolescents. 80.2% of cases had been lodged by the girl’s parents, when she pursued a relationship against their will [3]. In such cases, a case of statutory rape is often lodged against the boy, while the girl is treated as a victim incapable of giving consent thus, denying the sexual autonomy of both.
Such high number of false cases have led to an alarming situation and the courts in India have tried to interpret the provision of the POCSO Act positively where the relationship among minors is consensual. The High Court of Madras in Sabari @ Sabarinathan vs. The Inspector of Police (2018) CRL.A Mad HC, clarified that in cases of consensual relationship in minors, the age of child as defined under section 2(d) can be redefined as 16 instead of 18 years and the consensual sex after the age of 16 can be excluded from the provision of the POCSO Act[4].
In another such case, both the adolescent girl and the boy consensually left their house and subsequently the parents of the girl lodged a complaint. The Madras High Court upon learning the facts of the case and relying upon the girl’s (victim) statement that she had left with the accused consensually and there existed an affair between her and the accused boy held that “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.”[5]
WHAT IS THE ROMEO JULIET CLAUSE
The Romeo Juliet clause derived its name from the famous play by William Shakespeare which is based on a love affair between two young lovers. The Romeo Juliet Clause first emerged in the United States as an exception to teenage relationships in which the conduct was consensual between both the parties to that relationship. It was an exception for young people who engaged unanimously in sex and provides legal protection to them against statutory rape until both parties did the act wilfully and are close in age. The clause makes an exception for consensual and close in age relationships.
The enactment of this clause differs widely from nation to nation, where the exception to close in age gap is implemented differently. In countries such as the USA, 16-17 year olds can engage with partners with up to 23-year-old. In nations like Canada, where 14-16 years old teenager can engage with partner not more than 5 years older.
However, no law is without limitations. The same is applicable for the Romeo Juliet Clause as there are certain exceptions to this law. This law is strictly applicable only to cases where the relations made are consensual and the act done was by the mutual decision of both the partners. Non- consensual acts fall out of the purview of this act, making sure that the sexual predators are held liable for their actus reus. Secondly, this law is applicable only in cases where the close in age gap exception is followed. If the age gap exceeds the years as specified by the law, the accused can be held liable under the child protection laws.
SCOPE OF THE CLAUSE IN INDIA
The applicability of the Romeo Juliet clause in India has various socio, economic and legal repercussions. The stigma around pre-marital sex has led to the biasness in the law-making process. The age for consent remains at 18 in our nation while the age to marry is 18 for girls and 21 for boys, yet the social reality remains different where adolescents are forced into early marriage by their families to avoid pre-marital relationships and sex and to protect their name in society. This shows the conservative attitude of the Indian society and lawmakers, bolstering social norms of chastity and virginity before marriage.
The Law Commission of India’s 283rd Report in 2023 showed that lowering the age of consent would scale back years of progress in the fight against child marriage[6]. Strict laws on ‘minimum age’ end up restricting the negotiation of young girls into marriage of their choice. By introducing the ‘close in age exception’, the burden can be removed from the adolescents where they are forced into marriage to legitimize their relationship from fear of criminal prosecutions.
Among 80% of the cases registered under the POCSO Act were filed by the parents as concluded by a study in Enfold India [7], where the parents of the teen girl opposed the relationship on the grounds of caste or religious differences. A close-age gap exception could provide a blanket protection for young inter-caste or inter-religious couples so that their parents don’t threat criminal charges upon them under POCSO.
Another reason cited by the LIC in its 283rd report to not to decrease the age of consent was the access to internet amongst adolescents, with growing instances of cyberbullying, child grooming and children being at a high risk of exploitation[8]. While the risks cannot be ignored, it would be injudicious to deny sexual liberation and more sexual awareness to adolescents also it would imprudent to assume that a teenager who has internet access will stay away from all sought of sexual content. A wiser way is to educate and liberate them about sexual and reproductive health and internet safety.
The close in age gap exception would also be beneficial in identifying cases of child grooming where a much older adults is in a relationship with a minor as the age exception shall be limited to a particular years, such as up to 3 years older for 16-17 year teens.
The Romeo and Juliet clause would not be the only law where the state would carve exception for adolescents. Under the Juvenile Justice (Care and Protection of Children) Act, 2015, where an adolescent between the ages of 16 and 18 can be tried as an adult as they are believed to have the mental and decision-making capacity regarding the same but when it comes to their sexual autonomy, they are treated as a homogeneous group, denying their capacity to consent.
The close in age exception under the Romeo Juliet clause shall be enforced on a case-to-case basis rather than a blanket law that governs all the cases that includes individuals falling in that particular age category.
CONCLUSION
The rigid application of the POCSO Act, while well-intentioned, has inadvertently blurred the line between protection and over-criminalization. By treating all individuals below eighteen as incapable of consent, the law fails to account for the realities of adolescent relationships, thereby risking injustice in cases of genuine mutual affection.
The absence of a “Romeo and Juliet” clause not only leads to the penalization of consensual conduct but also undermines the very objective of the statute protection from exploitation. Judicial trends increasingly reflect discomfort with this rigidity, signalling the urgent need for legislative reform.
Introducing a narrowly tailored close-in-age exemption, supported by judicial safeguards, would strike a more balanced approach- one that protects minors from abuse without criminalizing their autonomy.
Ultimately, a just legal system must evolve with societal realities; failing to do so risks transforming protective legislation into an instrument of unintended harm.
REFERENCE(S):
Applicability Of The POCSO Act On The Consensual Relationship Between The Minor
POCSO Law and Romeo-Juliet Exception: SC’s Rethink
-Evaluating-the-efficacy-of-Romeo-Juliet-laws-in-India.pdf
Section 2 (1) (d) of the Protection of Children from Sexual Offences Act, 2012
Alakh Alok Srivastav v. UOI AIR 2018 SC 2440
[3] Study on “Romantic” Cases under the POCSO Act- An Analysis of Judgments of Special Courts in Assam, Maharashtra & West Bengal by Enfold Proactive Health Trust- Romantic cases under the POCSO Act EDITED on 30 dec 2024
Sabari @ Sabarinathan vs. The Inspector of Police (2018) CRL.A Mad HC
Vijayalakshmi v. State (2021) Crl. O. P. Mad HC
[6] Law Commission of India’s 283rd report- 20230929466194485.pdf
[7] Study on “Romantic” Cases under the POCSO Act- An Analysis of Judgments of Special Courts in Assam, Maharashtra & West Bengal by Enfold Proactive Health Trust- Romantic cases under the POCSO Act EDITED on 30 dec 2024
[8] Law Commission of India’s 283rd report- 20230929466194485.pdf
