Women Can Be Tried Under POCSO, Law Not Restricted To Male Offenders: Delhi HC

In a remarkable judgment, the Delhi High Court said that a woman too can be accused and face criminal proceedings for sexually exploiting a child. The court said that the act is not restricted to men as perpetrators. It also applies to women as well, for sexually penetrating a child. 

The court, headed by Justice Anup Jairam Bhambhani, was hearing a petition filed by a woman accused of sexually exploiting a child. The petition stated that the POCSO act applies only to men and that women cannot be held guilty in the matter. 

What does the petition say?

The petition further stated that the POCSO act uses the term 'person' for the accused and even the pronoun 'he' suggesting that the offender is male. 

But the court denied saying that by no means could the 'person' mentioned in Section 3 of the POCSO act that criminalises penetrative sexual exploitation of a child be interpreted as a man. 

POCSO applies to women accused also

The court said that POCSO can be implemented "regardless of whether an offence is committed upon a child by a man or a woman". 

"It is accordingly held that the acts mentioned in sections 3 and 5 (aggravated penetrative sexual assault) of the POCSO Act are an offence regardless of the gender of the offender, provided the acts are committed upon a child," the court said

The POCSO act has been enacted to protect children from sexual offences irrespective of which gender committed it. The court said, "The court must not interpret any provision of the statute that derogates from the legislative intent and purpose."

'He' used in the POCSO court cannot be interpreted that POCSO is only restricted to male offenders. 

"When viewed from this lens, the only rational inference is that the pronoun 'he' appearing in sections 3(a), 3(b), 3(c) and 3(d) must not be so interpreted as to restrict the offence engrafted in those sections only to a 'man'" the court said. 

Sexual exploitation is not just about penis penetration

The court stated that offences like "penetrative sexual assault, the insertion of any object or body-part; or the manipulation of any body part of a child to cause penetration; or the application of the mouth" cannot be interpreted as the penetrating of penis only.

So the court said that criminal proceedings would be held against the woman for "aggravated penetrative sexual assault" on a minor even though she is a woman. 

Hence the court dismissed the petition.