In 2018, Padma was sixteen, and doing fairly well as a high school student in Bengaluru. One day, she had a stomach ache that grew progressively worse in the middle of a class. School authorities asked her mother, Nirmala, to come by and take her to the doctor.
Nirmala, a single parent from a lower middle-class background, reached the school and rushed her daughter to a government hospital. While they waited for the doctor, Padma went to the toilet.
A few minutes later, there was a wailing from inside the cubicle. When Nirmala pushed open the door, she saw an infant between Padma’s legs. The umbilical cord still connected the mother and child.
This new life marked the abrupt end of Padma’s carefree school days.
Padma said she did not know she was pregnant. Physically, she hadn’t shown any signs at all. It just looked like she had put on a little weight. But within her tender teenaged body, barely used to menstruation, she had carried a child into the third trimester.
After the child was born, Padma came clean to her mother. She had had consensual sexual intercourse in a one-night exploration with a classmate. It hadn’t meant anything to her.
A social worker familiar with Padma’s case, who recounted its details to Scroll.in, said that she decided to give up the child for adoption. The baby was gone as swiftly as it had come. But that wasn’t the end of the story.
The longest battle of Padma’s life began when doctors informed the police of her pregnancy.
In India, the Protection of Children from Sexual Offences Act of 2012, or the POCSO Act, aims to protect children from sexual assault and sexual harassment. Under the law anyone who has information about a sexual act with a person under 18 years of age is required to report the information to the police. The law makes no distinction for consensual relationships between young people, where in some cases the male is just above the age of 18. This has had devastating effects in practice, with thousands of couples falling into the clutches of the law, and young men often being accused of violent crimes that carry punishment of up to life imprisonment.
The mandatory reporting requirement is reinforced in the case of doctors, who also have an obligation under section 357(c) of the Code of Criminal Procedure, to report various sexual offences to the police. Health professionals who do not report such information can face prison sentences of between six months to a year.
The mandatory reporting requirement was news to Nirmala, who is educated and works as a corporate employee. The mother-daughter duo pleaded with the police and doctors not to register a case.
But the police booked Ravi, the 16-year-old boy Padma had had sex with, for penetrative sexual assault on a minor. He was sent to an observation home – it was several weeks before he was granted bail. (All names of young people involved in POCSO cases, and their family members, have been changed to protect their identities.)
Designated the “victim” of a crime, Padma had to spend countless days meeting social workers and lawyers, and appearing before doctors, police and judges. She was forced to answer questions about the relationship, and prevented from moving on with her life.
Padma and Ravi are not alone. There are 243 million adolescents in India. According to organisations that work on child rights, thousands of them who are in relationships are ending up in similar situations, with the law to protect children from sexual offenses used against them.
POCSO was enacted in 2012 to improve the reporting of child sexual abuse in India, and put mechanisms in place to tackle the problem. It received warranted praise as the first law passed in India to tackle the problem of sexual offences against children, one that many felt was long overdue. But it also effectively criminalised sexual and romantic relationships between adolescents, and between adolescents and young adults. Ten years on, consensus is emerging that young people in such relationships have suffered as collateral damage under this law.
In 2020, the National Crime Records Bureau recorded 28,327 crimes against children under the POCSO Act. Girls were identified as the victims in 99% of the cases. An analysis by Child Rights and You showed that in 88% of these cases, the victims were girls aged between 12 and 18. While this was used by many to call for more protection for vulnerable teenage girls, those on the ground say the numbers are obscuring the harsh reality that many of these girls may not be victims of abuse, but victims of the law itself. However, there are no official records of consensual relationships booked under POCSO.
One 2017 study, however, found that romantic cases accounted for 25% of POCSO cases. The study, by HAQ: Centre for Child Rights and the Forum Against Sexual Exploitation of Children, or FACSE, arrived at this figure after analysing 1,957 cases at special courts in Delhi and Mumbai between November 2012, when the Act came into force, and July 2015. Even in the early years, the pattern was clear – the law was indiscriminately used against adolescents in consensual relationships.
Judicial officers in Delhi interviewed for the study, meanwhile, cited much higher figures, of between 50% and 80% for the number of POCSO cases that involved such couples.
Another analysis, conducted in 2014 by The Hindu, found that 40% POCSO cases related to consensual sexual activity.
Dr Jagadeesh Narayanareddy, professor at the Vydehi Institute of Medical Sciences and Research Centre, Bengaluru, explained that the risk for adolescent men was particularly grave because, in the aftermath of the 2012 Nirbhaya case, the Juvenile Justice Act was amended to allow individuals between the ages of 16 and 18 to be tried as adults under the criminal justice system in cases involving heinous offences.
The social worker familiar with Padma and Ravi’s case noted that as a result of this amendment, “the board is within their right to transfer the case to the adult criminal justice system. And that is something that weighs very heavily on young people.” They cited an instance of a 19-year-old who was convicted for life imprisonment despite being in a consensual relationship.
“Who has told these kids that teenage sex is a crime? No one. They have no clue,” said Kushi Kushalappa, the head of support and rehabilitation at Enfold Trust, an NGO in Bengaluru that works with survivors of child sexual abuse. She has seen the lives of several teenagers fall apart, simply because they were caught engaging in sexual or romantic relationships.
“We must protect children from entering the criminal justice system,” said Maharukh Adenwalla, a Mumbai-based advocate and legal researcher, one of the authors of the HAQ-FACSE study.
Kushalappa pointed out the paradox of a society that has a problematic record of child marriages, and teenage pregnancies, trying to police teenage sex in the 21st century. “Basically, you want to control their bodies. Where does this moralistic attitude come from? ” Kushalappa said. The way POCSO is used “puts a lot of youngsters in a vulnerable position”, she added. “We have to wake up to the fact that young people are engaged in sexual activity.”
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The use of the POCSO law against young people engaged in consensual relationships devastates their lives.
Ravi dropped out of school, and was branded a criminal in his community. In the worst-case scenario, he could end up spending his life in prison, the highest punishment under POCSO.
Padma’s mother managed to shield her from social shame. Nirmala had worked hard to provide for her family, and the POCSO case threatened to ruin their reputation and future. She did not even tell her relatives about Padma’s case. Her daughter had made a mistake. But the baby was gone, and the case could be handled quietly, she told Padma. She would fiercely protect Padma from society and the law.
But out of caution, she also decided not to send Padma to college.
Apart from the loss of opportunities, there are also grave health implications of the use of the POCSO law against consenting youngsters. Afraid of being dragged through the system, young people and even their parents often try to deal with health issues that can arise during pregnancies, without professional help, said Dr Narayanareddy.
“The moment we say this” – teenage sex – “will lead to a criminal investigation, people will not come to the hospital. As a result, the health burden will continue,” he said.
“Teenage pregnancies are complicated,” said Dr Anitha GS, gynaecologist at Bengaluru’s Vanivilas Women and Children Hospital. The risk is particularly high because the girl’s bodies “are not well formed to take care of the baby”, she explained. This increases the chances of problems such as obstructed labour. Thus, there are “more chances of ending up in Caesarean deliveries because her pelvis is not formed, the ligaments are not latched”, as they would be in an older person, she added.
A Lancet study analysing National Family Health Survey-4 data found a range of problems that were linked to adolescent childbearing including increased stunting and wasting in children, as well as lower education and income levels among the mothers.
These risks are exacerbated by the fact that there is almost no conversation around sexual and reproductive health in the country.
Dr Anitha pointed out that she frequently sees cases of young girls like Padma, who are unaware that they are pregnant. “They think they have irregular menstrual cycles,” she said. “We have so many cases where they come in for a routine check-up or some minor ailment. But they are in their third trimester or just about to deliver.”
Swati Jagdish, a sex educator based in Coimbatore, observed that even adults are often unaware of sexual and reproductive body parts and their functions, and that there is a shame and stigma associated with discussing them. The silence around these subjects “culminates with young adults being ashamed of their bodies, unable understand its needs or desires, and lacking a vocabulary to understand the nuances of and differences between sex, pleasure and reproduction”, she said.
The threat and use of POCSO can also lead to serious psychological problems. “They are subjected to an unwanted criminal investigation, which definitely has severe psychological trauma,” Dr Narayanareddy said. “People look at them with suspicion, and they are put on trial by society. Instead of supporting the victim, we suspect and blame them.”
At the same time, girls are also vulnerable to psychological issues that can be associated with an unplanned pregnancy. “Postnatal depression can happen, long term, she can have anxiety disorder, or depressive disorders,” Dr Anitha said. “She might be scared to get intimate with anybody else after this, or an irrational fear of pregnancy can develop.”
Health professionals, lawyers and socials workers that Scroll.in spoke to all said that the fear of criminalisation and stigma pushes many families and teenage girls to seek unsafe abortions. As Padma Bhate-Deosthali, senior advisor and former coordinator, Centre for Enquiry into Health and Allied Themes, noted, “The biggest sufferers are teenage girls who are pregnant, whether after consensual sex or rape survivors, because you can’t get a medical termination of pregnancy without an FIR.”
The POCSO law is used as a tool of moral policing primarily through two key sections: the one that deals with mandatory reporting, and another that pertains to the age of consent for sexual relations.
Among those who suffered under these provisions was Rani, a young girl from a small town in Tamil Nadu.
Rani was 15 when she met Pritam, who was just over 18. When the pair fell in love, Rani’s parents were more than happy to help them settle down. The family was poor, and the parents saw the marriage as a move that could bring some stability to their daughter, who was a school dropout. Soon after, the married couple left the village to find greener pastures in the booming metropolis of Bengaluru.
Although Indian law prohibits marriage of girls under the age of 21 – until earlier this year the limit was 18 – there are, nevertheless, an estimated 24 million child brides in the country. While a majority of these marriages are arranged by parents, there are some like Rani’s that are initiated by the couples themselves.
A year later, towards the end of 2021, 16-year-old Rani went to the Gosha Hospital in Bengaluru for her delivery. She was nine months pregnant and unaware of the laws that had changed in the last decade. So it was to her shock that doctors informed the police about her.
In 2014, the Ministry of Health and Family Welfare published a set of guidelines pertaining to “medico-legal care for survivors/victims of sexual violence”. The guidelines state that a doctor examining a survivor of such violence has to seek her consent before examining her or collecting her samples, and before informing the police. She also has to be told that “she has the right to refuse to file an FIR” without compromising on the treatment.
But mere guidelines are insufficient to make a significant change on the ground. As Dr Narayanareddy and his co-authors pointed out in a paper, “the ministry’s guidelines must be supported by corresponding legal amendments”.
Child rights activists Scroll.in spoke to agreed that POCSO was a well-thought out law in many other ways. It had features aimed at improving reporting of cases, such as a set of guidelines for setting up child friendly courts, and other guidelines to make the criminal justice system more accessible for children and parents.
“The new procedures and law wished to create a child-friendly atmosphere to convey that we are giving you an incentive to voluntarily report,” Adenwalla explained. “We don’t want to put the child through secondary traumatisation.”
But the provisions of mandatory reporting countermand these measures.
“You can’t have both, coercion and voluntary reporting,” Adenwalla said.
Mandatory reporting in healthcare settings deters young girls from coming forward and seeking treatment, Bhate-Deosthali said. She suggested alternatives such as mandatory reporting to the child welfare committee or social workers, instead of the police.
“The law says that even if there is an apprehension that a sexual act is to be committed, it has to be reported to the police,” explained Geetha Ramaseshan, lawyer, activist and trustee of Chennai-based organisation TULIR, an organisation that works on the prevention and healing of child sexual abuse. “I find it very harsh. So now we are looking into the future?”
Researchers and experts have argued that forcing doctors to report such incidents to the police compromises the principles of doctor-patient confidentiality and informed consent. “Mandatory reporting, therefore, raises concerns about the health professional’s primary responsibility as a carer and stereotypes survivors as helpless people incapable of making decisions for themselves,” the paper by Dr Narayanareddy noted.
The problems with mandatory reporting were only deepened by the changes that POCSO made to the age of consent in India. Until 2012, the age of consent for girls was set out as 16 years in Section 375 of the Indian Penal Code, which did not specify a corresponding age of consent for boys. POCSO raised the age of consent for all genders to 18 years. Even at the time of this change, activists, lawyers and doctors asked lawmakers to further lower the age further to 14. “The Parliament took a different, more moralistic view and raised it to 18,” explained Dr Narayanareddy.
This meant that an 18-year-old who entered into a consensual relationship with a 16-year-old would be committing a crime under Indian law.
In tandem, these two legal provisions created the perfect storm for unsuspecting teenagers, as Rani and Pritam discovered.
Once they had been intimated, police charged Pritam with penetrative sexual assault under POCSO, and other offences, and sent him to jail.
A social worker familiar with the case, who recounted its details to Scroll.in, said that Rani delivered her child all alone, in a dingy hospital labour ward.
The cruelty of the couple’s fate was particularly stark in light of what Rani had been through some years earlier. When she was 12 years old, she was abused twice by men in her village. Her parents reported the incidents to the police, who filed cases under the POCSO Act. While one person was caught and sentenced, the other case remains open and unsolved.
Now Pritam, the one person with whom she had had a consensual relationship, was charged under the same law as the abusers from her village.
Rani was deeply upset with the doctors. She had trusted them. She came to the hospital in her hour of need. In her eyes, they’d allowed the police to take away the one person whom she relied on.
A doctor familiar with Rani’s case said that at one point, her parents and in-laws arrived in the city, and resorted to protesting day and night outside the hospital. They were angry with the doctors for informing the police.
Doctors working at government hospitals, lawyers and social workers told Scroll.in that such incidents were not uncommon when young people’s relationships were reported to the police. Teenagers run away from the hospital the minute they know that they have to be reported to the police. Parents and children beg, plead and cry. Parents attempt out of court settlements, which are not allowed in POCSO cases – once filed, these cases can’t be withdrawn even if both parties want to withdraw them. Children are forced into committing to marriage – seen as a way to save the girl’s honour, and improve the boy’s chances of persuading a judge that he is not a criminal. In some cases, the couple themselves plead to be let go on the promise that they will marry when they turn 18.
Back at the ward, Rani undertook her own form of protest. She refused to cooperate with the police and doctors, who sought her consent to conduct the physical examination, collect forensic evidence and fill the medico-legal forms. If Rani’s consent in her relationship was invalid, she would not consent to this either.
Doctors familiar with Rani’s case said they found themselves stuck between the patient and her family on one hand, and the police on the other. The police wanted to wash their hands off the case and transfer it back to Rani’s village in Tamil Nadu.
The healthcare worker familiar with the case told Scroll.in that Rani left the hospital between ten days and two weeks after her protest. The social worker did not track the progress of the case beyond that point.
It isn’t only the government that wields the POCSO law to oppressive ends. In the hands of parents, the law is a particularly powerful tool to enforce patriarchy, caste, and religious norms, by dictating the girl’s choice of partner. As the HAQ-FACSE study noted, in a “large number of cases of ‘romantic relationship’” that were entering the criminal justice system, “the male is shown as the abuser, as it is the parent of the female child… who informs the police. In some cases, not only is the male partner’s bail plea rejected, but he is also convicted.”
Dr Sylvia Karpagam, a public health researcher, recounted a case from rural Karnataka where a girl’s family filed a POCSO case because the boy was from a different caste. The girl’s parents wanted her to marry within the same dominant caste group. She grew upset with her parents and refused to return home. She was subsequently sent to a shelter home by the Child Welfare Committee.
“They’d rather that she’d be in a shelter home than be with this boy from a different caste,” Dr Karpagam said.
Life in these shelters is far from comfortable. A 2020 report titled Why Girls Run Away to Marry, for which researchers spoke to girls who had left their homes, as well healthcare workers, social workers and others who were tasked with responding to children and adolescents, noted that the time that a girl spends in a shelter home is “largely a period of confinement” and that the girls “are not allowed to leave the home without permission”. In the period under study, and the shelter homes covered, “some of the girls ... would turn aggressive and violent with the staff; many girls suffered from depression, while some contemplated suicide”, the report cited counsellors as saying.
And yet, the report found, sometimes girls choose to live at shelter homes “to avoid abuse and harassment by the parents”. Dr Karpagam observed, “We think it’s all hunky-dory in the homes of these girls. We have zero data on the violence faced by girls in their natal homes.”
Andrew Sesuraj, activist and convener of Child Rights Watch, Tamil Nadu, recalled one instance in Salem district when a 16-year-old who was facing domestic abuse at home forced her 18-year-old male best friend to elope with her. Her parents were pressuring her to get married to an older man. The two ran away but were found by the police a few days later. Her friend was booked for abduction, and the girl was forced to go back to her parents.
Kushalappa said that in such cases, families act out against young girls for supposedly bringing dishonour to the family. “The family gets furious with the girls for the inconvenience that they are put through,” she said. “The families blame the girls for social backlash, setbacks and stigma.”
The judiciary has been taking note of the problems with POCSO cases.
In 2019, the Madras High Court acquitted a young man above the age of 18 who was accused of kidnap and penetrative assault of a girl younger than 18 – although the girl had refuted all the charges against him. Justice V Parthiban observed that in such cases, of consensual relationships, “it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction.” He recommended that, “Any consensual sex after the age of 16… can be excluded from the rigorous provisions of the POCSO Act.”
In a 2021 case, Justice Anand Venkatesh of the Madras High Court observed that the law “did not intend to bring within its scope or ambit, cases of nature where adolescents or teenagers involved in romantic relationships are concerned”.
The judge also noted, “It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly brings in necessary amendments under the Act.
Also in 2021, Justice Subramonium Prasad of the Delhi High Court noted that it had become a “trite and unfortunate practice” for police to file cases under POCSO “at the best of the family of a girl who objects to her friendship and romantic involvement with a young boy”. He added that the law was “being misapplied and subsequently misused”.
While welcoming these interventions, Adenwalla pointed out that they were not sufficient, and that lawmakers needed to act too. “You need to recognise this, admit it was a mistake and review this,” she said.
A common suggestion that most experts Scroll.in spoke to made was that the age of consent needed to be lowered back to 16. Many even suggested that the law should take a different view of teenagers who were in consensual relationships with young adults where the age gap was within a set permissible limit.
These are sometimes referred to as “Romeo and Juliet laws”, wherein some degree of protection is offered to “sexual offenders” where the minor has consented to the sexual intercourse, and the age between the two is not considerable. In his judgement, Justice Parthiban suggested that POCSO could be amended “to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more”.
Ramaseshan argued that, “The law does not make any difference between sexuality and sexual violence” and that the legal system “chooses to treat young persons as infantile.” For now, these cases are “clogging the criminal justice system,” she pointed out.
A 2017 study by the Centre for Child and the Law at the National Law School of India University, or NLSIU, found that “the criminalization of sexual experimentation has burdened Special Courts”.
POCSO cases are tried at over 1,023 special and exclusive POCSO courts. In 2019, 47,335 cases were registered under the law, of which only 34.9% (5,567) ended in conviction. The government does not maintain the reasons for acquittals.
The NLSIU report noted that the burden on courts is “not justified by trial outcomes” since it is in these cases that witnesses are typically hostile, leading to acquittals. Lawyers Scroll.in spoke to confirmed that this was a common occurrence.
Padma, too, intended to become a hostile witness.
After years of waiting to appear before the judges, her moment finally arrived in late 2021. One evening, Nirmala received a call from the police station to bring her daughter to the Juvenile Justice Board. It had now been four years since the case was filed. Just as for any teenager on the cusp of adulthood, a lot had happened in Padma’s life.
The year she turned 18, Nirmala got her married into a family that lived nearly 200 km away from Bengaluru. Her husband was unaware of Padma’s history, and her own siblings were still in the dark about the POCSO case.
At 19, Padma was pregnant once again, but this time there were celebrations.
By the time Nirmala got the call to bring her daughter to court, Padma was around 20. Padma made up some excuses at home, and arrived at the Juvenile Justice Board with her child on her hips.
After four long years, she was once again face to face with Ravi. They hadn’t kept in touch. Ravi, also 20, had recently tied the knot. He’d done some time in an observation home and then been let out on bail.
When Padma’s turn came, she went in and told the judges that she had consented to the sexual intercourse with Ravi.
“It is nerve wracking to give evidence in court,” said Kushalappa.
She described it as worse than giving a board exam, because witnesses have several people in positions of authority in front of them.
In one case, Kushalappa recalled that the girl had been forced by her family to say that she was raped. After several years, as the case dragged on, the girl wanted to change her testimony. She said she was even willing to perjure herself and face the consequences, if that meant the boy would have a lesser sentence.
“The guilt these young girls carry for having put someone in trouble, it’s sad to watch,” she said.
Padma’s courageous testimony will weigh in Ravi’s favour, but the case is far from over. Ravi has to report to the court every other month, though hearings are frequently postponed on minor procedural grounds. Over the last four years, his parents have had to shell out money to pay the hefty legal fees for extremely poor legal representation, the social worker familiar with the case said. The whole process has been a punishment for a teenage mistake that Indian law frames as a violent crime. For now, the social worker pointed out, Ravi continues to be treated as “guilty until proven innocent.”
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