Changing the age of consent

Older adolescents engaging in consensual and non-exploitative acts find themselves embroiled in the criminal justice system

September 05, 2022 12:15 am | Updated 01:03 am IST

In August 2, in Rama @ Bande Rama v. State of Karnataka, the Karnataka High Court quashed criminal proceedings of rape and kidnapping under the Indian Penal Code, and penetrative and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012, which had been initiated based on a complaint of a 17-year-old girl’s father against her 20-year-old partner. The girl stated in court that the acts were consensual and she had married the accused after she had turned 18. The marriage was registered and a child was born to the couple. The High Court observed that “if the court would shut its doors to the couple who are married and bringing up the child, the entire proceedings would result in miscarriage of justice.”

Normalcy of relationships

With the enactment of POCSO, a number of young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system. Since consent of a “child” is immaterial, consensual sexual intercourse with or among adolescents is treated on a par with rape. While boys/young men are charged with sexual offences, the girls are treated as victims and institutionalised in children’s homes when they refuse to return to their parents or their parents refuse to accept them. Faced with criminal prosecution and incarceration, the only relief available to the couple is to urge the High Court to quash the case by using its inherent power under Section 482 of the Criminal Procedure Code, “to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

Several other High Courts too have recognised the normalcy of these relationships, the futility of prosecuting romantic cases owing to the consensual nature of the relationships and marriage between the parties, as well as the harmful impact of continued prosecution on both parties. While quashing a similar case in Vijaylakshmi v. State Rep (2021), the Madras High Court observed that, “[p]unishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.” In Raj Kumar v. State of Himachal Pradesh (2021), the Himachal Pradesh High Court allowed a petition filed by the minor girl’s father for quashing the trial against his son-in-law. It observed: “If criminal proceedings are allowed to continue, the same will adversely affect the married life of his daughter...” In Skhemborlang Suting v. State of Meghalaya (2021), a couple got entangled under the POCSO Act when the husband took his wife, who was 17, to a hospital for a check-up after she became pregnant. The Meghalaya High Court quashed the case observing that an application of the Act would “result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support...”

An analysis by Enfold Proactive Health Trust of 1,715 “romantic” cases under the POCSO Act decided between 2016-2020 by Special Courts in Assam, Maharashtra, and West Bengal revealed that such cases constituted 24.3% of the total cases decided by the courts. The parents and relatives of the girls constituted 80.2% of the complainants. They approached the police after the girl went “missing”, or eloped with her partner, or a pregnancy was discovered. The victim and the accused were married to each other in only 46.5% of the cases. In 85.5% of the cases, the girls said the relationship was consensual. In 81.5% of the cases, they did not state anything incriminating against the accused during evidence. In 61.7% of the cases, the Special Courts too acknowledged that the relationship was consensual. Moreover, acquittals were recorded in 93.8% of the cases.

Law reform

The high rate of acquittals shows that the law is not in sync with social realities of adolescent relationships. The High Courts have also acknowledged the disruptive impact of the criminal law in such cases. While the marriage between the parties appears to have influenced several High Courts and resulted in the quashing of romantic cases under the POCSO Act, sexual behaviour is normative during adolescence, and not all relationships end in marriage. Blanket criminalisation of such consensual sexual acts involving older adolescents erodes their dignity, best interests, liberty, privacy, evolving autonomy, and development potential. It also impacts the delivery of justice as these cases constitute a large burden on our courts, and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation. There is thus a compelling need for law reform to revise the age of consent and prevent the criminalisation of older adolescents engaging in factually consensual and non-exploitative acts.

Swagata Raha and Shruthi Ramakrishnan are with the Research Team at Enfold Proactive Health Trust, Bengaluru

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