POCSO Cases Registered Only Against Boys Despite Gender-Neutral Law: Madras High Court Flags Systemic Bias in Consensual Minor Relationships

EduLaw EditorialLandmark Judgements2026-08-19

The Madras High Court flagged a critical systemic gap — in consensual adolescent relationships, only the male child faces criminal prosecution under POCSO, while the female child is treated exclusively as a victim, despite the statute being entirely gender and sex-neutral. Title: POCSO Cases Registered Only Against Boys in Consensual Adolescent Relationships: Madras High Court Exposes Gender Bias in Law Enforcement and Directs Systemic Reforms Case Name: S Venkatesh v. The State of Tamil Nadu Case Number: WP No. 18454 of 2026 Court: Madras High Court (Madurai Bench) Judges: Hon'ble Justice G.R. Swaminathan and Hon'ble Justice V. Lakshminarayanan Judgment Date: May 27, 2026 Citation: 2026 LiveLaw (Mad) 225 ABSTRACT The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted as a gender-neutral statute designed to shield all children below the age of eighteen from sexual offences, irrespective of their biological sex. However, in practice, the investigative machinery of the State has applied this law with a conspicuous gender imbalance. In S Venkatesh v. The State of Tamil Nadu, the Madras High Court, through a Division Bench comprising Justice G.R. Swaminathan and Justice V. Lakshminarayanan, made far-reaching observations about the selective and discriminatory registration of POCSO cases exclusively against male children in situations involving mutually consensual adolescent relationships. The Court observed that the male child is unfairly criminalised while the girl's family is treated as the aggrieved party — an approach that contradicts the fundamental architecture of the POCSO Act. Beyond gender bias, the Court identified a series of systemic deficiencies in the implementation of child protection laws across Tamil Nadu, including the continued use of the prohibited two-finger test, failure to provide free FIR copies, night-time interrogation of children, denial of bail despite it being the statutory rule, and absence of adequate child-witness deposition infrastructure. The Court directed the Tamil Nadu Chief Secretary to constitute a high-level committee to examine these gaps and report back within four months. TABLE OF CONTENTS Introduction and Context Factual Background and Procedural History Key Issues Identified by the Court The Court's Observations on Gender-Neutral Application of POCSO Systemic Deficiencies in Implementation of Child Protection Laws Directions Issued by the Court Relevant Statutory Provisions and Case Laws Conclusion and Broader Implications 1. INTRODUCTION AND CONTEXT The POCSO Act, enacted in 2012, represents India's most comprehensive legislative framework for protecting children from sexual exploitation. Unlike the Indian Penal Code provisions on sexual offences which were historically gender-specific, Parliament deliberately crafted POCSO as a gender-neutral statute. Section 3 (penetrative sexual assault), Section 5 (aggravated penetrative sexual assault), Section 7 (sexual assault), and Section 9 (aggravated sexual assault) of the POCSO Act use the term "person" rather than specifying any gender for either the perpetrator or the victim. This was a conscious legislative choice — the Parliament intended that any child, regardless of sex, could be a victim, and any person, regardless of sex, could be prosecuted as an offender. However, the ground reality of POCSO enforcement in India tells a starkly different story. When two minors engage in a relationship described by both parties as consensual, the criminal justice system overwhelmingly treats the boy as the offender and the girl as the victim. This default assumption — that the male child must be the aggressor — imports gender stereotypes into a statute that was expressly designed to transcend them. The Madras High Court's observations in the present case bring this contradiction into sharp focus and call upon investigating agencies to reconsider their approach in such matters. The significance of this judgment extends beyond the immediate parties. It arrives at a time when Indian courts across the country have been grappling with the tension between the POCSO Act's blanket criminalisation of all sexual activity involving persons below eighteen and the developmental reality that adolescents do form romantic relationships. Multiple High Courts have noted the peculiar injustice of criminalising adolescent boys for relationships that both parties entered voluntarily. The present judgment adds a structural dimension to this discourse by directing remedial action from the State government itself. 2. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The observations on POCSO emerged in somewhat unusual procedural circumstances. The original petition — WP No. 18454 of 2026 — was filed as a public interest litigation by one S. Venkatesh, an advocate from Madurai. The primary relief sought was a direction compelling the Tamil Nadu government to file a curative petition before the Supreme Court of India against the acquittal of Dashwanth, the accused in the 2017 rape and murder of a seven-year-old girl at Mugalivakkam near Chennai. The petitioner relied upon a Right to Information response which stated that the Madras High Court had not granted the accused a certificate to appeal to the Supreme Court. Since the Supreme Court had relied upon the existence of such leave while expanding its consideration of the appeal to include the conviction itself, the petitioner argued that the acquittal was vitiated by jurisdictional fraud. The Division Bench, upon examination of its own earlier records, found that leave to appeal had in fact been granted. The RTI response furnished to the petitioner was incorrect, and therefore the foundational premise of his plea did not survive. The Court further held that no mandamus could issue in such matters, observing that "a citizen, nay, a third party does not possess a vested legal right to force the State of Tamil Nadu to litigate." Nevertheless, the State government voluntarily informed the Court that it independently intended to file a curative petition, and the Court recorded this submission before disposing of the PIL. It was in this context that the Bench, with the assistance of Deepika Murali — counsel for child rights organisation Tulir — took note of several systemic failures in the implementation of POCSO and the Juvenile Justice (Care and Protection of Children) Act, 2015 across Tamil Nadu. What could have been a routine disposal of a writ petition became the vehicle for a comprehensive judicial audit of the State's child protection infrastructure. 3. KEY ISSUES IDENTIFIED BY THE COURT The Bench framed its concerns around several interlocking systemic gaps that collectively undermined the protective purpose of child-centric legislation. The first and most prominent issue was the gender-discriminatory registration of POCSO cases in consensual adolescent relationships, where only male children were being prosecuted while the statute imposed no such gendered distinction. The second cluster of concerns related to outdated and prohibited medical examination practices — particularly the two-finger test and hymen-related examinations — that continued to be conducted despite being categorically condemned by the Supreme Court. The third set of issues pertained to the treatment of children in conflict with the law, including routine denial of bail, night-time interrogation, failure to ensure parental presence during enquiries, and unnecessary production before Child Welfare Committees. The fourth category involved the barriers faced by pregnant minors in accessing antenatal care and medical termination of pregnancy due to mandatory reporting requirements. Finally, the Court flagged infrastructural deficiencies including the absence of exclusive POCSO courts, inadequate child-witness deposition rooms, inconsistent anonymisation of judgments, and delays in recording the evidence of child victims. 4. THE COURT'S OBSERVATIONS ON GENDER-NEUTRAL APPLICATION OF POCSO The most significant and widely discussed portion of the judgment concerns the Court's finding that in cases involving consensual relationships between minors, the police invariably register cases only against the male child. The Division Bench stated in unambiguous terms: "The male child is unfairly criminalized and his family drawn into JJB proceedings, while the treatment of the two families remains unequal for the same relationship." This observation identifies a structural inequality — not in the text of the law itself, but in the administrative culture that surrounds its enforcement. The Court's reasoning proceeds from the text of the POCSO Act. Since Sections 3, 5, 7, and 9 define offences using gender-neutral language, and since Section 2(d) defines "child" as any person below the age of eighteen years irrespective of sex, both participants in a mutually consensual adolescent relationship are, in the eyes of the law, simultaneously victims and offenders. If the law treats both identically, the police cannot logically designate one as the complainant and the other as the accused based solely on their sex. Yet this is precisely what happens in practice — the girl's parents approach the police, an FIR is registered naming the boy, and the boy is drawn into Juvenile Justice Board proceedings while the girl is assigned victim status. To remedy this asymmetry, the Court suggested a practical measure: when the parents or guardians of a girl insist on registering an FIR, the police should inform them that the boy's family has the identical legal option to lodge a reciprocal complaint. This is not a direction to register counter-cases as a matter of routine, but rather an informational safeguard — ensuring that both families understand the legal position before one-sided proceedings are initiated. The underlying premise is that knowledge of mutual legal exposure may encourage families to pursue reconciliation or counselling rather than criminal prosecution of a fellow child. This reasoning aligns with emerging judicial thinking across High Courts. In Vijayalakshmi v. State (2021, Madras High Court), Justice V. Parthiban had recommended that Parliament consider reducing the age of consent under POCSO from eighteen to sixteen for consensual relationships. The Karnataka High Court in Sabari Akash v. State of Karnataka (2024) similarly noted the disproportionate criminalisation of adolescent boys. The present judgment builds upon this foundation by converting judicial discomfort into a concrete administrative direction. 5. SYSTEMIC DEFICIENCIES IN IMPLEMENTATION OF CHILD PROTECTION LAWS Beyond gender-discriminatory prosecution, the Court identified a wide spectrum of implementation failures that merit individual attention. The continued use of the two-finger test — a medically discredited and judicially prohibited practice — was flagged as an ongoing violation of the Supreme Court's directions in Lillu @ Rajesh v. State of Haryana (2013) 14 SCC 643, where the apex court held that the two-finger test violates the right to privacy, dignity, and physical and mental integrity of a woman. The Court noted that even in appellate hearings in sexual offence cases, discussion of the hymen remained prevalent, reflecting a deeply embedded cultural bias that equates virginity with credibility. The Court called for strict compliance with the Guidelines and Protocols on Medico-legal Care for Survivors/Victims of Sexual Violence issued by the Ministry of Health and Family Welfare. It recommended periodic audits of medical examination practices and sensitisation programmes for both medical and judicial officers. Potency tests — particularly those conducted in cases arising from consensual adolescent pregnancies — were recommended to be discontinued in favour of DNA analysis and other scientific methods that carry actual evidentiary value. The treatment of children in conflict with the law drew equally sharp criticism. Under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 , bail is the rule and detention the exception for children. Yet the Court found that children were routinely held in observation homes, particularly in POCSO cases arising from consensual relationships. The non-supply of free copies of First Information Reports to the families of children in conflict with law, the conduct of night-time interrogations, and the absence of parents or guardians during enquiries were all flagged as violations of both statutory provisions and constitutional safeguards under Article 21 of the Constitution of India. The Court also addressed a sensitive intersection between mandatory reporting obligations and reproductive healthcare. Under Section 19 of the POCSO Act , any person who has knowledge that an offence has been committed against a child must report it to the police. This creates a dilemma for healthcare providers when a pregnant minor — particularly one whose pregnancy results from a consensual adolescent relationship or a customary adolescent marriage — seeks antenatal care or medical termination. The fear of triggering criminal proceedings deters such minors from accessing healthcare altogether, placing both the minor and the unborn child at medical risk. The Court suggested the development of standard consent forms that would allow doctors to comply with mandatory reporting without disclosing the minor's identity wherever legally permissible, and called for a uniform referral mechanism ensuring timely access to abortion services and courts where gestational limits have been exceeded. 6. DIRECTIONS ISSUED BY THE COURT The Division Bench directed the Tamil Nadu Chief Secretary to constitute a committee comprising the Home Secretary, Health Secretary, and Law Secretary to examine the suggestions made by the Court. The government was directed to file its response before the High Court Registry within four months. The specific directions and recommendations include the following measures. Police must inform both families of their mutual legal rights when registering POCSO cases in consensual relationships. Standard Operating Procedures must be framed for sharing a child's identity with schools, hospitals, and other agencies strictly on a need-to-know basis. A clear protocol must be established for medical termination of pregnancies involving minors and for medical examination of male victims in POCSO cases. Child-witness deposition rooms must be provided in every POCSO court. The number of exclusive POCSO courts must be increased, particularly in districts where more than one hundred cases are pending. The Court summarised its approach with characteristic judicial modesty: "The law relating to children is still developing. It requires constant tweaking and readjustments. This is one such attempt." 7. RELEVANT STATUTORY PROVISIONS AND CASE LAWS The judgment engages with multiple statutory frameworks and prior judicial pronouncements. The primary statutes under consideration are the Protection of Children from Sexual Offences Act, 2012 — particularly Section 2(d) (definition of child), Section 3 (penetrative sexual assault), Section 7 (sexual assault), Section 8 (punishment for sexual assault), Section 19 (mandatory reporting), and Section 29 (presumption of certain offences) — and the Juvenile Justice (Care and Protection of Children) Act, 2015 , particularly Section 12 (bail of children) and provisions relating to observation homes and Juvenile Justice Boards. Several landmark judgments form the jurisprudential backdrop of this decision. In Independent Thought v. Union of India (2017) 10 SCC 800, the Supreme Court struck down the exception to Section 375 IPC that permitted sexual intercourse with a wife between fifteen and eighteen years of age, thereby aligning the age of consent with the POCSO Act's definition of a child. In Lillu @ Rajesh v. State of Haryana (2013) 14 SCC 643, the Supreme Court prohibited the two-finger test, holding it violative of Articles 14, 19, and 21 of the Constitution. The Madras High Court's own decision in Vijayalakshmi v. State (2021) recommended legislative reconsideration of the age of consent for consensual adolescent relationships. The Karnataka High Court's ruling that the POCSO Act is gender-neutral and that women can be prosecuted under Sections 4 and 6 further reinforces the present Court's observations about discriminatory enforcement. Additionally, the Supreme Court's directions in Nipun Saxena v. Union of India (2019) 2 SCC 703 regarding victim identity protection and the sensitisation of personnel handling cases of sexual violence against children are directly relevant to the systemic gaps identified in this judgment. 8. CONCLUSION AND BROADER IMPLICATIONS The judgment in S Venkatesh v. The State of Tamil Nadu represents a significant moment in the evolving judicial discourse on the POCSO Act's application to consensual adolescent relationships. While the Court did not — and could not — amend the statute or alter the age of consent, it accomplished something equally consequential at the administrative level. By directing the State government to constitute a committee and examine systemic gaps, the Court has initiated a process that could reshape how investigating agencies, medical professionals, and judicial officers approach POCSO cases involving minors on both sides. The broader implications of this judgment extend to three distinct domains. First, in the domain of gender justice, the Court has challenged the unspoken assumption that in any sexual encounter between adolescents, the male must be the predator and the female must be the prey. This assumption not only harms adolescent boys who face the stigma and trauma of criminal proceedings, but also diminishes the agency of adolescent girls by casting them as inherently incapable of participation in relational decisions. Second, in the domain of child rights, the judgment reinforces that the "best interests of the child" principle — enshrined in Section 3 of the Juvenile Justice Act and in the United Nations Convention on the Rights of the Child — must govern every interaction between the State and a minor, whether that minor is classified as a victim or as a child in conflict with law. Third, in the domain of public health, the judgment recognises that an inflexible application of mandatory reporting requirements can paradoxically harm the very children the law seeks to protect, by deterring them from accessing essential healthcare services. This case serves as a judicial call to action — not for legislative amendment alone, but for an immediate recalibration of institutional practices. The four-month deadline imposed upon the Tamil Nadu government ensures that these observations do not remain merely aspirational. If implemented faithfully, the committee's recommendations could serve as a model for other States grappling with identical challenges in POCSO enforcement. The law, as the Court reminded us, is still developing. This judgment ensures it develops in the right direction. Keywords: POCSO Act gender neutral, Madras High Court POCSO boys only, consensual relationship minors POCSO, S Venkatesh v State of Tamil Nadu, two-finger test prohibited, POCSO case analysis 2026, adolescent relationships criminalisation, Juvenile Justice Act bail children, Section 7 POCSO Act, Section 12 JJ Act