Home / Compliance Cues / Trade & Regulatory Compliance Updates / The Delhi High Court holds that women can be tried for offences related to sexual assault under the POCSO Act

On 9th August 2024, a Single Judge Bench of the Delhi High Court, while dealing with a revision petition, passed a judgment in the case of Sundari Gautam v. State of NCT of Delhi, and held that an offence of penetrative sexual assault and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) can be made out against a woman perpetrator.
The revision petition had been filed before the Court challenging the orders of the Additional Sessions Judge in which charges had been framed against a woman for the offence of ‘aggravated penetrative sexual assault’ under the POCSO Act.
The petitioner inter alia contended that the offence of ‘penetrative sexual assault’ under Section 3 of the POCSO Act and the offence of ‘aggravated penetrative sexual assault’ under Section 5 of the POCSO Act cannot be made out against a woman due to the use of the pronoun ‘he’ in these Sections suggesting that the legislature only intended to make a ‘man’ liable for these offences. Section 5 of the POCSO Act lists the instances when a ‘penetrative sexual assault’ would be considered as an ‘aggravated penetrative sexual assault’. As per Section 3 of the POCSO Act, a “person” is said to have committed penetrative sexual assault if inter alia “he” penetrates his penis to any extent, into the vagina, mouth, urethra or anus of a child, manipulates any part of the body of the child to cause penetration, applies his mouth to the penis, vagina, anus, urethra of the child.
The petitioner also submitted that the definition of these terms under the POCSO Act is similar to the definition of the term ‘rape’ under the Indian Penal Code 1860 (“IPC”) which can only be made out against a man.
The respondent, on the other hand, submitted that the POCSO Act is a gender-neutral legislation aimed at protecting minors against sexual offences and holding perpetrators accountable regardless of their gender. The use of the word “person” appearing at the beginning of Section 3 of the POCSO Act indicates that the said provision applies to women offenders as well.
The Delhi High Court agreed with the submissions made by the respondent and held that the word “he”, as it appears in Section 3 of the POCSO Act, cannot be interpreted narrowly.
Noting that the definition of ‘aggravated penetrative sexual assault’ under Section 5 of the POCSO Act is consequential to the definition of ‘penetrative sexual assault’ under Section 3 of the POCSO Act, the Court acknowledged that the pronoun “he”, as used in these definitions, has not been defined in the POCSO Act. The Court relied on Section 2(2) of the POCSO Act which states that the words that have not been defined under the POCSO Act but have been defined under other legislations such as the IPC would have the meanings assigned to such words in those legislations. Section 8 of the IPC states that “the pronoun ‘he’ and its derivatives are used of any person, whether male or female”.
The Court also noted that the object of enacting the POCSO Act was to protect children from the offences of sexual assault, sexual harassment and pornography irrespective of whether the offence was committed by a man or a woman. Considering the legislative intent and the broad definition of the term “penetrative sexual assault” the Court concluded that a narrow interpretation of the provision and limiting the application of such offences to a man would be illogical. As regards the comparison with the offence of rape, the Court observed that while the acts that form the offences of rape and penetrative sexual assault (and consequently aggravated penetrative sexual assault) are the same, the use of the term ‘person’ in the POCSO Act as opposed to a ‘man’ in the IPC, suggests that the relevant provisions of the POCSO Act include any offender irrespective of their gender.
Accordingly, the Delhi High Court dismissed the petition and held that the offence of aggravated penetrative sexual assault can be made out against the petitioner, even though she is a woman.
Our Take
Recently, courts in India have taken action against female perpetrators and have held them responsible for offences against children. In 2021, in the state of Telangana, a woman was convicted under the POCSO Act for sexually abusing a minor.
Now the Delhi High Court has held that offences of penetrative sexual assault can be made out against a woman. This decision is important as it has expanded the scope of applicability of the provisions pertaining to “penetrative sexual assault”, which is typically associated with men, to women perpetrators.
Such decisions provide the much-needed assurance to the public that the courts would not shy away from holding the perpetrators accountable for their acts and would not be deterred by the gender of such perpetrators. The decision of the Delhi High Court demonstrates the commitment of the judiciary to foster a more supportive environment for children and protect them from sexual exploitation and sexual abuse.
Links
Sundari Gautam v. State of NCT of Delhi,2024:DHC:5944 – https://dhccaseinfo.nic.in/jsearch/judgement.php?path=dhc/AJB/judgement/09-08-2024/&name=AJB09082024CRLR8522024_145244.pdf
