The High Court of Karnataka has said that the Law Commission of India will have to rethink the age criteria in law for having consensual sex to address the issue of instances of sexual intercourse as a result of mutual love affair amongst minor girls and boys, who are aged above 16 but are below 18.
The court also directed the Principal Secretary, State Education Department, to set up a committee to evolve a mechanism for educating students, at least from Class IX onwards about the acts, which are criminalised under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the similar provisions under the Indian Penal Code (IPC), and the consequences of such acts.
A Division Bench, comprising Justice Suraj Govindaraj and Justice G. Basavaraj, pointed out that court is coming across several criminal cases relating to minor girls above the age of 16 having fallen in love and eloped with a boy, either a minor or just attained majority, and in the meantime having had sexual intercourse with the boy.
The Bench made the observations while dismissing an appeal filed by the State against the trial court’s 2020 order of acquitting a boy from a POCSO Act case of 2016 after the girl, her parents and the relatives turned hostile during the trial, and it was brought to trial court’s notice that both the girl and the boy had married in 2017. The High Court also noted that they are living together as married couple and having two children now.
It is also seen that many of the above offences, which are deemed offences under IPC or POCSO Act, are deemed to have been committed as a result of or on account of lack of knowledge on the part of the minor girl and the boy, and many a time both know each other well being classmates or otherwise, the court said.
“Though lack of knowledge of law is no excuse, can minors be presumed to have knowledge of the applicable law would be the question required to be asked in such a situation,” the court observed.
“The aspect of consent even by a girl of 16 years and above would have to be considered if there is indeed an offence under the IPC and/or the POCSO Act. Normally when evidence is lead the victim is a major and the testimony given then of an act committed while being a minor would have to be given due value,” the Bench observed.
While the complaints in such cases are filed in the heat of the moment on account of parents objection for such relationship or marriage of the boy and the girl, later the family members turn hostile, probably realising the desire of the girl and the boy, the Court pointed out.
“The effect of criminal prosecution of a minor girl and/or boy, and/or by who has attained majority recently, causes severe harm and injury to all in their families... There is also a possibility of misunderstanding occurring between the boy and the girl that could impact their relationship,” the court observed.
“We are of the considered opinion that the Law Commission of India would have to rethink the age criteria, so as to take into consideration the ground realities,” the Bench observed.