In a first of its kind order, the Madras High Court Bench here has directed the Tirunelveli police to prosecute a 23-year-old married woman for eloping with a minor boy and maintaining a live-in relationship with him if her act constitutes commission of an offence either under the Indian Penal Code or Protection of Children from Sexual Offences (POCSO) Act, 2012.

A Division Bench comprising Justice S. Nagamuthu and Justice V.S. Ravi passed the order while disposing of a habeas corpus petition filed by the woman’s husband, accusing his cousin, a minor, of having abducted her on June 14 this year. However, on being produced before the court by the police, the woman said that she eloped with the minor boy on her own accord.

Denying the claim of having been abducted by anyone, much less by her husband’s cousin, the woman, who is a graduate, told the judges that she was living happily with the minor boy in Kerala and not interested in returning to her husband. Since she was a major, the judges set her at liberty and asked the petitioner to work out his remedy through appropriate civil proceedings.

However, “it is made clear that by taking the third respondent (petitioner’s cousin), who is less than 18 years of age, if the detenu (petitioner’s wife) has committed any offence either under the IPC or under the POCSO Act, the second respondent (Inspector of Manur police station in Tirunelveli district) shall take appropriate action,” the Bench said.

Reacting to the judgment, High Court lawyer B. Saravanan doubted if a woman could be prosecuted at all for having a sexual relationship with a minor boy without marrying him, since all existing laws had been drafted on the premise that only women and girls were vulnerable to sexual exploitation by men and not the other way round.

‘No provision’

“There is no clear-cut provision either in the IPC or the POCSO Act prescribing punishment for adult women who have sexual intercourse with minor boys.

This is because incidents of the present kind are recent social aberrations in a male dominant society, where women alone had been at the receiving end for centuries together,” he added.

Concurring with him, advocate N. Satish Babu said that a woman in sexual relationship with a minor boy could at most be prosecuted under Section 8 of POCSO Act which categorises any person below 18 years of age to be a child and defines ‘sexual assault’ to mean an act committed with sexual intent and which involves physical contact.

“The Prohibition of Child marriage Act, 2006 defines the term ‘child’ to be the one who had not completed 21 years of age if it was a male and one who had not completed 18 years in case of a female.

“But this Act could be invoked only if a woman marries a minor boy and not if she is in a live-in relationship without marrying him,” he added.

However, advocates say law not clear if it is punishable under POCSO Act