Section 2(a)

A CHILD means a male who has not completed twenty-one years, and a female who has not completed eighteen years

Section 3

A child marriage is VOIDABLE at the option of the contracting party who was a child, by a petition filed before he or she completes two years after attaining majority

Section 12

A child marriage is VOID where the child is taken or enticed out of the keeping of the lawful guardian, compelled or induced by deceit to go from any place, or sold or trafficked for the purpose of marriage

Sections 9 to 11

Punishment for a male adult above eighteen who marries a child, for solemnising a child marriage, and for promoting or permitting one

Section 16

Child Marriage Prohibition Officers, whose duty is to prevent child marriages

§ The gap between the two statutes

The Child Marriage Act makes most child marriages voidable, not void. A marriage may therefore subsist in law although one party is a child.

The POCSO Act does not ask whether the child is married. A sexual act with a person below eighteen is within its offences whatever the relationship, and there is no marital exception anywhere in the Act.

So a subsisting marriage is not a defence. The husband of a child bride who has intercourse with her commits an offence under the POCSO Act, although the marriage itself may not have been avoided.

📖 Independent Thought v. Union of India, (2017) 10 SCC 800

The Supreme Court read down Exception 2 to Section 375 of the Penal Code, which protected a husband whose wife was not under fifteen, so that sexual intercourse with a wife below eighteen is rape. The Court relied expressly on the POCSO Act, which treats every person below eighteen as a child and contains no marital exception, and on Section 42A, which gives the POCSO Act overriding effect over any inconsistent law. It held that the exception, to the extent it treated a married girl between fifteen and eighteen differently from an unmarried girl of the same age, was arbitrary and discriminatory and violated Articles 14, 15 and 21.

Rule: a girl below eighteen is a child for the purposes of sexual offences whether or not she is married. Section 63 Exception 2 of the Bharatiya Nyaya Sanhita now states the age of eighteen in the text.

§ Personal law and Section 42A

• The question. Some personal laws recognise a marriage contracted before eighteen, for instance on attaining puberty. Does such a marriage take a sexual act with a child outside the POCSO Act?

• The answer given by the High Courts, including the Kerala High Court in 2022, is that it does not. Section 42A gives the POCSO Act overriding effect over any inconsistent law, and a marriage valid under personal law does not alter the fact that the other party is a child.

• The reasoning. The POCSO Act is a special law enacted for the protection of children. It does not invalidate the marriage, which is a matter for personal law and the Child Marriage Act; it makes the sexual act an offence.

• The Supreme Court in 2024 issued guidelines for the effective implementation of the Prohibition of Child Marriage Act, treating child marriage as a violation of the child's autonomy and development, and emphasising prevention.

§ The child victim as a child in need of care and protection

Section 2(14) of the Juvenile Justice Act defines a child in need of care and protection to include a child who has been, is being or is likely to be abused or exploited for sexual abuse, among other categories.

So a POCSO victim is within the JJ Act's protective scheme. The Child Welfare Committee constituted under that Act decides on the child's care, and the POCSO Rules require the police to report every case to it within twenty-four hours.

The two Acts work together. POCSO deals with the offence and the trial; the JJ Act deals with the child's care, shelter and rehabilitation.

§ Where the offender is himself a child

Section 34(1) of the POCSO Act: where any offence under the Act is committed by a child, the child shall be dealt with under the Juvenile Justice Act.

Section 34(2): if any question arises in a proceeding before the Special Court whether a person is a child, the Special Court shall determine it after satisfying itself about the age, and shall record its reasons.

Section 34(3): no order of the Special Court shall be deemed invalid merely by subsequent proof that the age it determined was not correct.

The heinous-offence route. Under Section 15 of the Juvenile Justice Act, where a child of sixteen to eighteen is alleged to have committed a heinous offence, the Juvenile Justice Board conducts a preliminary assessment of his mental and physical capacity, his ability to understand the consequences, and the circumstances. Depending on the result, he may be tried as an adult by the Children's Court. The graver POCSO offences, carrying a minimum of seven years or more, are heinous offences within the Act.

Status under the JJ Act

A child in need of care and protection: Section 2(14)

A child in conflict with law: Section 2(13)

The body that deals with the child

The Child Welfare Committee

The Juvenile Justice Board, and in a heinous case the Children's Court

The forum for the offence

The Special Court under POCSO

The Board, or the Children's Court after a preliminary assessment under Section 15

Age determination

Section 94 of the JJ Act, applied to victims as well

Section 94 of the JJ Act; under POCSO Section 34(2), by the Special Court where the question arises before it

The object

Care, protection and rehabilitation

Reformation and reintegration, save where the child is tried as an adult

📖 Jarnail Singh v. State of Haryana, (2013) 7 SCC 263

The Supreme Court held that the procedure prescribed for determining the age of a child in conflict with law should equally be applied to determine the age of a child victim, and proceeded on the documentary evidence in the order the rules prescribed.

Rule: the documentary hierarchy for proof of age, now in Section 94 of the Juvenile Justice Act, 2015, governs the age of the victim as well as the offender.

§ The case of two minors in a relationship

• Both are children under the POCSO Act and the Juvenile Justice Act, and consent is irrelevant for each.

• In practice, the boy is proceeded against as a child in conflict with law before the Juvenile Justice Board, and the girl is treated as the victim and as a child in need of care and protection.

• The JJ Act's orientation matters here. The Board's object is reformation and reintegration, and the preliminary assessment for trial as an adult arises only for a heinous offence by a child of sixteen or above.

• The difficulty is recognised. It is one of the situations the reform debate on adolescent relationships addresses.