On Friday, the Apex Court held that while deciding whether a case falls within the ambit of Protection of Children from Sexual Offences (POCSO) Act or not it has to consider the biological age of the rape survivor and not the mental age.
Pocso was enacted in 2012 with an intent to protect minor victims and avoid re-victimisation of the child at the hands of the Indian judiciary system.
In the present matter, a woman has filed a plea seeking prosecution of accused under Pocso for sexually assaulting her 39-year old daughter, who doctors had found to have a mental age of six to eight years.
Pocso defines child as, “ any person who is below 18 years of age.”
A bench of Justices of Deepak Mishra and R F Nariman observed that invoking Pocso by taking into account the mental age of the victim would encroach upon the legislative function. Including the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating certain words to the definition. By saying age would cover mental age has the potential to create immense anomalous situations without there being any guidelines or statutory provisions. Needless to say, they are within the sphere of the legislature.”
“ If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In 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 absolute terms,“ he said.
The bench turned down the and held that “ we would be doing violence both to the intent and the language of Parliament if we were to read the word mental into Section 2(1) (d) of the Act (definition of child).& quot
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