The Supreme Court of India recently issued notice on a petition arising from a case in which a woman stands accused of ‘penetrative sexual assault’ against a minor boy, an offence defined in Section 3 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The petitioner has claimed that this provision is gender-specific, i.e., it applies only to male perpetrators and, hence, cannot apply to her. Its final outcome notwithstanding, the petition raises a question that is foundational to the scope of India’s child sexual abuse law: can women be prosecuted for an offence under this provision?
The text supports gender neutrality
Going by available evidence, the answer seems to be in the affirmative. The POCSO Act is gender-neutral, qua both perpetrators and victims, for three reasons. First, if interpreted properly, the text of the Act does not restrict its application to male offenders.
The petitioner has argued that Section 3 is gender-neutral because it uses the pronoun ‘he’ for the perpetrator.
However, Section 13(1) of the General Clauses (GC) Act, 1897, states, ‘words importing the masculine gender shall be taken to include females’. Since the GC Act lays down rules and definitions to aid statutory interpretation, Section 13(1) implies that unless the contrary is explicitly stated in, or appears from the context of the POCSO Act, ‘he’ includes ‘she’.
This interpretation is reinforced by the definition of penetrative sexual assault in Section 3 of the POCSO Act. It encompasses acts beyond penile penetration, such as digital or object penetration, or oral penetration, which can be committed by female perpetrators as well.
The provision also covers situations where a person makes a child perform any of the listed penetrative acts with themselves or even with a third person, further underscoring its gender-neutral scope.
A deliberate legislative choice
Second, reliable official sources confirm the legislative intent of keeping the POCSO Act gender-neutral. For instance, the Ministry of Women and Child Development, Government of India in a written response to a question in the Lok Sabha, dated December 20, 2024, stated unambiguously that POCSO ‘is a gender neutral Act’. Similarly, when the Protection of Children from Sexual Offences (Amendment) Bill, 2019 was tabled in the Lok Sabha, its ‘Statement of Objects and Reasons’ also specified that the POCSO Act was ‘gender neutral’.
Nevertheless, it may be possible to argue that gender-neutrality here is only meant to apply to the minor victims of sexual offences (i.e., boys and girls under the age of 18 years), but not to the perpetrator. This is especially because one of the written answers of the Ministry of Women and Child Development, dated February 7, 2019, to a question raised in the Rajya Sabha, was that the POCSO Act ‘covers sexual abuse of boys also as it is a gender-neutral Act’.
However, such a reading would misrepresent the legislative intent. Consider the provision on ‘rape’, found in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 (the erstwhile Section 375 of the Indian Penal Code, 1860). It specifies that ‘a man’ commits rape if he commits certain forms of penetrative sexual acts against ‘a woman’.
This is clearly a gender-specific provision which envisages that only women may be victims of rape and only men may be perpetrators of rape. If Parliament intended to make the POCSO Act gender-specific, the wording of Section 3 of the POCSO Act, which covers substantially the same sexual acts as Section 63 of the BNS, would also contain the same gender-specific language.
That the POCSO Act does not make any such specification should be seen as a deliberate legislative choice, reflecting the intent to make the POCSO Act more broadly applicable.
It serves the law’s purpose
Finally, there are strong normative reasons for interpreting the POCSO Act as gender-neutral for both victims and perpetrators. The Supreme Court, in Sakshi vs Union of India (2004), highlighted the diversity of abuse that any law aimed at protecting children must encompass when it observed that child sexual abuse often involves a wide range of sexual conduct beyond penile-vaginal intercourse.
Although patterns of child sexual abuse can differ depending on the genders of the victim and perpetrator, such abuse is fundamentally embedded in imbalances of power, trust and vulnerability. Thus, the majority of cases reported under the POCSO Act still involve male perpetrators and female victims, but research and survivor accounts reveal that women can and do commit sexual offences against children. A gender-specific reading of the POCSO Act would render these experiences invisible and deny justice to certain victims.
The law’s objective should be to safeguard children from sexual abuse, irrespective of the sex or gender identity of the person inflicting it.
Shraddha Chaudhary is Assistant Professor, School of Law, BML Munjal University, Gurgaon
Published – November 17, 2025 12:08 am IST
