This article is written by Aaron Thomas. This article primarily deals with the age of consent relating to sexual offences. This is done in concurrence with the study of the age of consent or age of majority in the primary Acts in India.
It has been published by Rachit Garg.
Table of Contents
When one comes across the term ‘age of consent’, if it is an updated person, his mind will immediately go to POCSO. Although a normal citizen may not even be aware of the expansion of the abbreviation that is accorded to the “Protection of Children from Sexual Offences Act, 2012”, the term POCSO has become known everywhere in society. There has been a recent boom in the coverage that POCSO has been getting, and this is because of various factors. The judiciary also plays a part in this boom in coverage. The Chief Justice of India, D.Y. Chandrachud, himself vehemently urged the Parliament, and subsequently, the Law Commission of India, to revisit the provisions of POCSO that criminalise consensual intercourse among those aged between 16-18.
In this article, we shall also look into the history of the establishment of the age of consent in India and how the age of consent changed from millennia to millennia. We shall also look into the stance of the judiciary on the topic. The article will explore the differing age of consent in various Indian statutes, such as the Contract Act and others. This article shall look into the relationship between the age of consent and the age of marriage, and above all, this article aims to make the reader understand the delicate position of the age of consent by providing the historical and current situation of POCSO.
What is the age of consent in India
The expected answer to the question posed above would be “18 years”, nothing more, nothing less. This is not wrong or right. To clearly understand the current age of consent in India, we have to first take a look back at the implementation of the original Age of Consent Act, 1891 in India. This exercise is imperative as it helps us draw parallels regarding the socio-cultural issues that initially and inherently plague the age of consent.
Since the primary religion in India is Hinduism, it was logical that the customs that society practices would be based upon Hindu literature and beliefs. This is evident in the practices that were prevalent at the time. This includes but is not limited to Sathi, child marriage, etc. The initiation of the social reform movement was, in fact, to increase the legal age of marriage for Hindu girls. It was no secret that the majority of the opposition stemmed from the fear of an attack on Hinduism by reformists.
In 1884, it was Mr. Behram Balaji who took on the responsibility of taking action on the deplorable age of consent that was prevailing in India. He felt the dire need for action on the matter, and hence he published his famous “Notes” on “Infant Marriage in India” and “Enforced Widowhood” on August 15, 1884. These documents, although pure in intention, were hardly well reasoned. Malabari was heavily criticised for the extreme views he wrote on the matter and faced a lot of criticism for the baseless allegations he made.
But these issues did bring to the forefront the issues of child marriage and widowhood. Widowhood and child marriage were related for many reasons, some of which are listed below:
- The groom’s family desired to have a daughter-in-law young enough to adjust to the groom’s family (i.e., her new domestic surroundings).
- Some grooms were willing to pay a huge ‘bride price’. These were typically grooms who were old or generally considered unsuitable men.
- In some regions (Bengal), it was commonly believed that a girl should be married off at the first signs of puberty so that intercourse with her husband would happen before she became sexually active.
All these reasons led to the prevalence of child marriage, and this subsequently led to widowhood as the husbands of these young wives would be much older and, as a result, would die much earlier. The alarming statistics of widowhood were also showcased in the Census of 1881.
Even though Malabari issued such issues of grave significance, the efforts to implement the notes into legislation were rejected by an attendant resolution of His Excellency in Council. They stated that none of the injustices that he claimed were happening fell under existing civil or criminal crimes. They said that his notes should lead to the gradual increase in sensitisation that is imparted to students through education. As his pleadings fell on deaf ears, he decided to seek help from outside India, i.e., the British. When Malabari was in Britain, many other social reformers wanted to raise their issues in congruence with Malabari’s. In a desperate bid to make his ‘Notes’ more practical, it was Dayaram Gidumal, Malabari’s chief propagandist, who carried the Telang prescription to its logical conclusion; this ultimately became the ‘Age of Consent Bill’.
Dayaram was successful in incorporating the earlier age of consent that was already included in the Indian Penal Code (IPC). The IPC already had an age limit of 10 years of age, below which sexual activity was considered rape. The government, based on the recommendations of the ‘Notes’, considered increasing the age limit to 12. This was criticised on a national level. Never before had a social issue gained this much attention; even the meetings of the INC (Indian National Congress) could not get this much attention. The opposition, led by Lokamanya Tilak, contended that education was the primary and most efficient deterrent tool, not legislation. Another compelling contention was that the government should not interfere in a religious matter. The debate surrounding the Age of Consent Bill reached unprecedented proportions in the year 1890. When the proposal came up before the Governor General, Lord Lansdowne fittingly declared that “in cases where religious practices are inconsistent with individual safety and public peace and is unilaterally condemned by every legal perspective, it is religion and not morality which must give way.”
As is evident from above, the age of consent is a dynamic topic that is subject to extensive deliberation and legislation every now and then. The age of consent for engaging in legal sexual activity as of right now in India is 18. Any sexual activity that takes place between individuals under the prescribed age constitutes an offence. The age bar for engaging in sexual activity is in line with the age of marriage for girls, but the age of marriage for boys is 21. Though there is an amendment pending, which is the Prohibition of Child Marriage (Amendment) Bill, 2021, it has not yet borne fruit as it has seen many delays that have been caused by the Parliamentary Committee that has been reviewing it. This committee has been repeatedly asking for time extensions.
The age of consent at which an individual can independently enter into a contract is 18 years old. The right to vote and many other privileges are conferred on a citizen at the age of 18. As for other statutes, the age of consent plays an enormous role in determining the modus operandi of proceedings and the repercussions of breaking the law. This is evident in the latter part of this article.
Age of consent under the Criminal Law
The age of consent is dealt with extensively in criminal and civil law. This shall be discussed below about statutes concerned with the age of consent, with the help of landmark judgements.
Indian Evidence Act, 1872
Any individual who acts as a source of evidence before the court can be classified as a witness. The test of veracity and admissibility of the source of evidence is what is dealt with extensively in the Indian Evidence Act (hereinafter referred to as the Act).
Under Section 118 of the Act, any individual can be a witness to the court, provided they comprehend the questions put forth and provide rationale answers for the same. As is evident from reading this Section, it is clear that no minimum age has been set for an individual to be classified as a witness. However, an oath cannot be administered to a child under the age of 12, as per Section 4(1) of the Oaths Act, 1969.
In the landmark case of Suresh v. the State of UP (2001), the SC held that the testimony of a 5-year-old can be admitted as evidence as the girl was able to comprehend the questions put forth to her and understood the underlying principle behind asking such questions to the girl. In another landmark judgement, Himmat Sukhadeo v. State of Maharashtra (2009), the SC said that the child should be able to differentiate between what is right and what is wrong. If the child is capable of giving the evidence under oath, he must understand his obligation to the state and the sanctity of the court to which he is testifying. The SC has also very recently stated that a preliminary examination of child witnesses should also be taken before taking their evidence.
Under Section 114 of the Act, it is mandated that the evidence provided by a child witness be assessed with much greater caution than regular evidence, as a child witness is easily persuadable. The Supreme Court, in the case of M.P. v. Ramesh (2011), held that the deposition of a child witness may require corroboration. However, in the case of Suryanarayan v. State of Karnataka (2000), the SC stated that the corroboration requirement mandated in M.P. v. Ramesh was a mere suggestion to exercise caution. If there are no material discrepancies in the child’s deposition, no corroborative evidence is required, and the evidence can be admitted.
Indian Penal Code, 1860
The Indian Penal Code (hereinafter referred to as the IPC) lays down separate age categories under which an underage individual is prosecuted.
As per Section 82 of the IPC, nothing is a crime that is done by a child who is below 7 years of age; the latin maxim of doli incapax in the Indian context is squarely a product of this provision. Furthermore, as per Section 83 of the IPC, nothing is an offence which is committed by a child between the ages of 7 and 12, who has not attained sufficient maturity to comprehend the gravity of the crime he has committed and subsequently cannot comprehend the consequences of his actions. Section 361 of the IPC mandates that whoever entices any minor under the age of sixteen years of age for a male and under 18 years of age for a female or any individual of unsound mind from the care of their legal guardian is said to be committing kidnapping. The discrepancy in the ages in the above mentioned Section is bad. Section 363 provides punishment for the above Section. Section 366 of the Act explicitly deals with inducing a minor girl to accompany any individual to a place or go from one place to another on her own, or undertaking any activity with her that is likely to force or seduce her into illicit sexual intercourse, which shall be punishable with imprisonment up to 10 years.
Criminal Procedure Code, 1973
After the passing of the Juvenile Justice (Care and Protection of Children) Act, 2000, a slew of measures have been introduced to resolve the offences of juvenile delinquents in an amicable manner. Section 27 of the Code of Criminal Procedure (CrPC) establishes jurisdiction in the case of juveniles. It states that any offence that is not punishable with capital punishment or imprisonment for life, committed by a person who, at the date when he is brought before the court, is under the age of sixteen, may be tried by the Court of Chief Judicial Magistrate, by any court empowered under the Children Act, 1960, or by any other law for the time being in force providing for the treatment, training and rehabilitation of juvenile delinquents. The Juvenile Justice (Care and Protection of Children) Act 2015, succeeded the existing Juvenile Justice (Care and Protection of Children) Act 2000. The aim of the Act is to prosecute adolescents between the ages of 16-18 as adults for heinous crimes. The 2015 Act will also permit a Juvenile Justice Board, which would incorporate analysts and sociologists into deciding whether an adolescent criminal will be tried as an adult or not.
Age of consent under the POCSO Act, 2012
Before delving into the POCSO Act, we have to first understand the current problems caused by the said Act. The POCSO Act has criminalised consensual sex among adolescents, whose nature it is to sexually experiment. As a result, the number of juvenile incarcerations has skyrocketed, and most of these are for consensual relationships.
The enactment of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) has seen an increase in the age for consenting to sexual activities from 16 to 18 under Section 375 of the IPC. The age of consent had been 16 since the 1940’s. The Criminal Law Amendment (CLA Act) of 2013 saw the expansion of the definition of rape from penile to vaginal penetration to a range of penetrative and non-penetrative sexual assaults without consent, including penetration of the vagina, anus, and urethra by the penis, objects or other body parts; penetration of the mouth with the penis; and application of the mouth to the vagina, urethra or anus without consent. The idea of the age of consent was brought to India from Britain through the implementation of the IPC. A further amendment was brought to the Act in 2019, where the minimum mandatory sentence for penetrative sexual assault and aggravated penetrative sexual assault was increased to ten years and twenty years, respectively and for aggravated sexual assault, the punishment for the remainder of the natural life of that person, fine or death. This functioned as a catalyst for the deterioration of the sexual rights of adolescents.
Data as reflected in Crime in India 2011, shows that 7112 instances of rape against children (Section 376 IPC) were reported at the all-India level, whereas data as reflected in Crime in India 2019, shows that 4977 instances of rape against children were reported at the all-India level. This decrease in numbers is attributed to the fact that Crime in India 2019 had a separate table for sexual offences committed under the POCSO Act. Crime in India 2019 denotes that 26,192 incidences of penetrative sexual assault (Section 4 of the POCSO Act) and aggravated penetrative sexual assault (Section 6 of the POCSO Act) were reported in 2019. The data clearly points to the manifold interest in sexual offences committed against minors; this could also be because of the wider definition of rape as compared to earlier.
The harsh age limit implemented in India is in stark contrast to other developed democracies like Canada and Japan. In Canada, the age of consent is 16 years, and in Japan, it is 13. In Uganda, the age of consent was raised from 14 to 18 in the 1990’s to prevent rich people from having sex with young girls, as this was believed to be fueling the HIV epidemic.
All hospitals are mandated to report sexual offences to the police. Failure to do so is treated with 2 year imprisonment. This has resulted in doctors becoming hesitant to provide the necessary treatment to pregnant adolescents and victims of rape; the same goes for hospitals. This is just one of the implications of the downright deplorable provisions of POCSO that have stigmatised society to such an extent against sexual intercourse between adolescents that it has become extremely difficult for them to seek any form of help if any mishap happens.
The reasoning for increasing the age from 16 to 18 has not been explicitly mentioned in the Statement of Objects and Reasons of the POCSO Act. The government blatantly stated that they were just following the United Nations Convention on the Rights of the Child (UNCRC), which requires the State parties to undertake all appropriate measures to protect the children from any sexual assault, harrasment or pornography and should protect the child from being induced into engaging in any unlawful sexual activity. A proper reasoning should have been provided for such a salient legislation that affects the lives of millions of adolescents, but all of them are left wanting.
Age of consent under Contract Law
The minimum age for entering into a contract in India is 18 years. Section 11 of the Indian Contract Act stipulates the requirements for parties to enter into a contract that is not void. The very first mandate under Section 11 is that both of the contracting parties should have attained the age of majority. Section 11 lays down certain exceptions as to who cannot enter into a contract; these are minors, persons of unsound mind, and those the law specifically qualifies as exceptions. The age of majority in India has been set down in the Indian Majority Act, 1875. In it, a person is said to have attained majority when they reach 18 years of age. If a minor has a guardian or court of ward supervising him, they will have to attain the age of 21 to attain majority.
The contract entered into with a minor is no contract at all. No contractual obligations can be imposed upon the minor. There is no question of specific performance, as the contract will be void-ab-initio. Even if a minor commits perjury regarding his age and claims to be 18 at the time of entering into a contract, he cannot be implicated for any legal obligations arising out of the contract, i.e., the rule of estoppel would not apply to a minor. Needless to say, a minor cannot be a partner at a firm; they can, however, receive the benefits of the partnership. The same principle applies when minors are named in contracts by their parents or guardians; they can only reap the benefits of the contract and not be held liable. A minor cannot transfer property as per the Transfer of Property Act, 1882, but can receive property from another individual under a legal contract.
To better understand the relationship between the age of consent in POCSO and the age of majority in the Contract Law, we must understand the fundamental principle that backed the enforcement of the age bar in the Contract Act and subsequently the Indian Majority Act. The age of consent varies from time to time and region to region. Upon a glossary probe into the past of the age of consent, we see that the Barbarians set the age of majority at 15 because children were considered old enough to carry a weapon, but in ancient Sparta, it was 31. The reason for mandating the minimum age of 18 when entering a contract is to ensure that the parties to the contract understand the obligations of the contract. This principle is also applied to the mentally handicapped, as they do not have the requisite mental capacity to assiduously fulfil the obligations of the contract. The age of consent should ideally change with time. With the advent and rapid spread of internet services, kids are being exposed to the world much quicker than before. They are receiving education and gaining knowledge about various things that they did not have access to earlier. The Government of Japan approved lowering the age of consent in 2022. This Bill is aimed at building a much stronger youth section in the country.
The same reasoning could be applied for the age of consent in POCSO too. The application of the same justification for age of consent to the POCSO Act would be totally false. This is because basic human biology plays into the POCSO Act and not the Contract Act. It is completely natural for adolescents to experiment with various sexual activities. This is not confined to the human race, as many species begin to copulate at their respective adolescent ages. On the other hand, it is unlikely for adolescents to develop an incessant need to undertake a business venture that would be legally binding or enter into any agreement that would legally implicate them.
Age of consent for marriage
The age of consent in India as of the date of writing this article is 18 for females and 21 for males, as per the Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006. These Acts are unlike the Indian Majority Act as they are not gender-neutral. But there is a grey area on this subject. If a man has sexual intercourse with his wife (consensual or not), who is aged 15 years or more, it does not come under the purview of rape as it is marital rape and, as such, does not come under Section 375 of the IPC. This may seem bewildering, but the reason for the discrepancy mentioned above is because of personal laws that govern marriage. In Muslim personal law, a girl can enter into the contract of marriage after attaining puberty, which is generally considered to be 15. A discrepancy in the age of marriage and the age of consent for engaging in sexual activity has always existed. A contract of marriage that took place when a girl was below 18 but above 15 is not void but is voidable on the wish of the girl before she reaches the age of 18. The same can be applied in the case of boys, i.e., if the boy marries before he reaches 21. In the case of Prema Kumari v. M. Palani (2011), the family court held that the marriage was not a valid one as the wife had not completed 18 years of age, as per Section 5(iii) of the Hindu Marriage Act, 1955. The parties were hence required to nullify their marriage as per Section 13(2)(iv) of the Hindu Marriage Act. The difference in rights of a girl in seeking nullification of marriage is mentioned in Section 13(2)(iv) and is reproduced as under :
“A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age, but before attaining the age of 18. The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.”
The SC has reiterated that marriage with a minor girl is not void but voidable, and upon reaching the age of maturity, it becomes a valid contract of marriage in the recent case of Yogesh Kumar v. Priya (2021), decided on August 26, 2021.
Recently, a Bill was introduced in Parliament, which stirred up much controversy nationwide. This was the Prohibition of Child Marriage (Amendment) Bill, 2021, which proposes increasing the age from 18 to 21 for girls. This Bill has been subject to extensive deliberation, and hence there has been much delay in its passing. The delay has been largely attributed to the examination delay by the parliamentary committee that has been constituted to examine it. The government has stated that the bill will come into force 2 years after its notification.
Views of the Law Commission on age of consent in India
Over the decades, starting in 1980, the Law Commission of India (LCI) has given various opinions on this matter. The Law Commission, in its latest report, has also given its opinion on the matter, as was required of it. The mounting pressure on it to reconsider the age of consent was too much from the side of the courts. To understand the most recent stance of the Law Commission, we have to first examine the opinions of the Law Commission in the previous decades.
The Law Commission, in its 84th Report, recommended increasing the age of consent to 18 through the following dictum:
“2.20 The question to be considered is whether the age (of consent) should be increased to 18 years. The minimum age of marriage now laid down by law (after 1978) is 18 years for females, and the relevant clause of Section 375 should reflect this changed attitude. Since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual intercourse with a girl below 18 years should also be prohibited.”
This opinion was given for the discrepancy in the age of consent and marriage laws to be levelled, as has been mentioned above. The commission was criminalising the sexual intercourse of adolescents with or without their consent.
Although not a law commission report, it is important that we analyse the Justice Verma Committee Report that was set up after the Nirbhaya incident in 2012 with the explicit aim of studying the position of women in different sectors of society, understanding the challenges they face, and recommending remedies through legislation or otherwise. The Justice Verma Committee was vehemently opposed to the idea of the age of consent being 18 years, as stated in the POCSO Act. This was done through the interpretation of Article 34 of the United Nations Convention on the Rights of the Child. This was rightly done, as the aim was to not criminalise consensual sex between two individuals but to stop sexual assault on children.
This brings us to the latest report of the Law Commission, which is the 283rd Report. The Report talks about bringing amendments to the POCSO Act, but it advises against altering the age of consent. The cause for it to even consider amending the existing age of consent is the urging of several high courts for improvement on the matter regarding consensual sex. The Karnataka High Court (Dharwad Bench) asked the Commission to rethink the age gap as the number of girls eloping with boys and having consensual sex was too many for the court not to take cognizance. The Madhya Pradesh High Court asked the commission to rethink the mandatory imposition of the statutory minimum sentence in cases where de facto consent is present on the part of the girl. The Commission, in consultation with many stakeholders, including the National Commission for Protection of Child Rights, held that in the current scenario of child abuse, child trafficking and child prostitution plaguing our society, it was best to leave the age of consent debate alone, at least on the age bar. A slew of other measures were also introduced. These measures are:
- Amendment to Section 4 and Section 8 of POCSO Act: The Commission suggested providing discretion to the courts in imposing the minimum mandated imprisonment in POCSO cases provided a plethora of factors, which include but are not limited to; approval of the child, the age gap between the accused and child should not exceed 3 years, etc.
- Amendment to Section 18 of Juvenile Justice (Care and Protection of Children) Act, 2015.
- Amendment in Section 375 or 376 of the Indian Penal Code.
- The vital need to spread awareness about the laws of POCSO and the repercussions of not abiding by the law for the betterment of students has to be recognised.
The hesitance of the Law Commission, even after the repeated urging of many High Courts and even the Chief Justice of India to reconsider the age of consent, is worrying. The Law Commission remains unperturbed on the matter and has missed the opportunity to take action on a matter of vital importance to society.
Difference between age of consent and age of marriage
The age of consent and the age of marriage in the current Indian scenario may seem interchangeable, as there is no discrepancy in the age, at least for girls. But this is not a black and white matter as such, and there exist subtle nuances that spoil the entire idea behind the equity in the ages of consent and marriage that has been brought through by extensive legislation. There is not much to substantiate on this topic, as it has already been mentioned above, as to how personal laws play a predominant role in the age of consent conversation and how the age of consent and the age of marriage are linked to each other. Recently, the Bombay High Court remarked:
“The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only in society, but the judicial system must take note of this important aspect.”
This clearly shows the wish of the courts to have an explicit demarcation between the age of consent and the age for marriage, or at the very least, all of the legal loopholes should be closed. The Bombay High Court was also of the opinion that ultimately this is a topic for the parliament to ponder upon, but cognizance should be taken of the cases that come before the courts, of which a huge chunk are about romantic relationships. Another trend that is on an upward slope is that fathers or relatives of the underraged girl would file a case against the girl’s partner when a mishap occurred, and by the time the case came to court, the couple would already be happily married after the parents reconciled their differences. This is because the girls that are usually ‘victims’ of these cases are usually on the verge of attaining majority, and by the time they attain majority, the proceedings of the case will begin. Therefore, sudden decisions by the relatives (primarily the father) would only work to the detriment of the girl and her family. It is clear from the lines above that the need to decrease the age of consent is of paramount importance in the pursuit of an egalitarian society.
Landmark judgments vis-à-vis age of consent in India
There is a relative scarcity in the number of cases that have touched upon the topic of age of consent with regard to sexual intercourse. The reason for this is the nature of the age limit. As it is a subject with severe national implications and affects the lives of millions of adolescent teens, it is best left to the parliament to ponder and the court to opine on the same. There exist a lot of HC decisions on the matter, some of which are given below.
Varadarajan v. State of Madras, 1964
This case, which is a landmark case in the realm of kidnapping, does not directly deal with the POCSO Act in any way; at least that’s what a basic perusal of the judgement and ratio would suggest. This judgement was unequivocally linked to the ‘enticement’ factor that continues to affect minors. This case has by and large laid down the independence of a minor girl in taking decisions of her own. This case also clarifies the degree of persuasion that has to be carried out to formulate in the young mind of an underage individual the intent to leave her house.
In this case, the youngest daughter of S. Natarajan (the Assistant Secretary in the Department of Industries and Cooperation of the Government of Madras), called Savitri, developed close relations with a neighbour named Varadarajan. They were talking on a regular basis, and their friendship had transcended into something more. The parents, realising the gravity of the situation, sent their minor daughter to their relatives house. While at her relatives house, Savitri, on her own volition, called Varadarajan with the intent to elope. It is to be noted here that Varadarajan did not induce her to come to this decision. They both eloped and registered their marriage with the witness of Mr. P.T. Sami. Mr. Natarajan immediately lodged a complaint at the police station for kidnapping his minor daughter. The police found them, and subsequently, the case went to Madras High Court. Through a special leave petition, Varadarajan appealed the guilty verdict handed to him by the Madras High Court. The Supreme Court was staunchly of the opinion that this was not a case of kidnapping. The SC made the following remarks; that the girl was on the verge of attaining the age of majority, was a senior college girl, and she had lived her life in a big city for her whole life and, as such, could not be equated to an unlettered girl.
This is of consequence to POCSO and age of consent in today’s scenario, as the Varadarajan judgement is being used more frequently in acquitting POCSO accused’s as the ‘victim’ would be on the verge of attaining majority and the relationship would be wholly consensual.
Recent judicial pronouncements vis-à-vis age of consent in India
Sabari v. State of T.N, 2019
This was a case where the accused was prosecuted for consensual relations with a 17 year old girl. Upon the girl not supporting the prosecution’s case, the Madras HC, while acquitting the accused, stated;
“Relationship invariably assumes the penal character by subjecting the boy to the rigours of the POCSO Act”, and “the boy involved in the relationship is sure to be sentenced to 7 years or 10 years as minimum imprisonment, as the case may be”, and suggests to the legislature that “on a profound consideration of the ground realities, the definition of “Child” under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.”
Atul Mishra v. State of U.P, 2022
In a similar case, the Allahabad High Court, while dealing with an elopement case in which a child was born out of wedlock, noted that “the applicability of statutory provisions is not a mathematical exposition or its theorem. If the mathematical application of these statutes leads to disastrous effects, the onus falls upon the courts to mellow down the rigours of the provision to achieve a more meaningful and swallowable application of the statute.”
“If these teens decided to enter into a nuptial knot and now they have a baby out of this relationship, certainly the rigours of the POCSO Act would not come in their way. The girl is not sexually abused; no sexual assault was made upon her, nor has she been sexually harassed by the applicant, as contemplated by the object of POCSO Act.”
Anoop v. State of Kerala, 2022
The Kerala High Court, in the case of Anoop v. State of Kerala, laid down that:
“Unfortunately, the statute does not distinguish between the conservative concept of the term “rape” and the “sexual interactions” arising out of pure affection and biological changes. The statutes do not contemplate the biological inquisitiveness of adolescence and treat all “intrusions” on bodily autonomy, whether by consent or otherwise, as rape for certain age groups of victims.”
As is evident from the data presented above, the age of consent in India is a burning topic. Why the government hastily increased the age from 16 to 18 for consensual sexual relationships is unclear. The harsh sentences handed down to unsuspecting, innocent adolescents are deplorable. As is evident from the Indian Evidence Act and other Acts, a strict age bar to distinguish between what is permitted and what is not is not feasible. The principle of proportionality has to be kept in mind not only when sentencing the offender but also when enacting substantive criminal legislation. The socio-cultural issues that plagued our nation millenia ago are still influencing our nation today. The onus lies upon each and every one of us to educate the officials on the grave injustice that is happening in society in the form of violations of the rights of adolescents. It is natural for adolescents to be inquisitive and act accordingly. The High Courts have been lately taking a step in the right direction, and the author sincerely wishes the SC or the Government took immediate cognizance of the matter and did so appropriately.
Frequently Asked Questions (FAQs)
Is consensual intercourse among adolescents under the age of 18 punishable in India?
Yes, even consensual sex is prohibited under the POCSO Act of 2012.
Is POCSO gender neutral?
Yes, POCSO is gender neutral, and if both parties are minors, the one older shall be the accused.
What is the procedure for recording statements of a victim under POCSO Act?
The child’s statement must be recorded at his/her place of residence or at a place of the child’s choice. The statement must be recorded in the presence of the child’s parents or another person of the child’s choice.
Has the age of marriage been raised to 21 for girls?
The Bill to raise the age of marriage for girls to 21 years has not been passed yet.
Can a minor be obligated to perform under a contract?
A minor cannot be obligated for performance but can reap the benefits of the contract he enters into.
- ‘Court judgements cannot be a sole criteria for assessing age of consent issue’ – Times of India
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