Consent age must be distinguished from marriage age: Bombay High Court

Urging the Parliament to look into the issue of “adolescents entering consensual sexual relationships”, the Bombay High Court has noted that India seems to have the highest age bar globally in this respect and it is necessary to look into what is happening around the world.

The observations have come vis-a-vis a case under the Protection of Children Against Sexual Offences Act, 2012.

“Ultimately, it is for the Parliament to ponder upon the said issue, but being cognizant of the cases, which are coming before the courts, with a huge chunk, being romantic relationships,” Justice Bharati Dangre said in the judgement passed on July 10.

The remarks came vis-a-vis an appeal filed by a 25-year-old man challenging a February 2019 order of a special court convicting him for raping a girl, who was then aged 17 years and five months.

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Acquitting the man, she ordered his immediate release. “The appellant is entitled to his liberty, on being acquitted of the charges levelled against him. He shall be released forthwith unless his custody is required in some other criminal case,” she said, quashing the conviction order of the special POCSO court.

Referring to the POCSO cases, Justice Dangre said: “The criminalization of romantic relationship has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system and ultimately when the victim turns hostile by not supporting the charge against the accused, in the wake of the romantic relationship she shared with him, it can only result in an acquittal.”

Referring to the age of consent, Justice Dangre said over time, various statutes in India have increased the age of consent and it was maintained at 16 from 1940 till 2012, when the POCSO Act raised the age of consent to 18 years, probably one of the highest ages globally, as majority of countries have set their age of consent in the range of 14 to 16 years.

“Children in the age group of 14 are considered capable of giving consent to sex in countries like Germany, Italy, Portugal, Hungary etc. In London and Wales, the age of consent is 16. Among Asian countries, Japan has set the age of consent as 13. In Bangladesh, Section 9(1) of the Women and Child Abuse Prevention Act, 2000 defines ‘rape’ as sexual intercourse with a woman, with or without her consent, when she is below 16 years of age. Similarly, in Sri Lanka, the age of consent is 16,” she said.

On India, Justice Dangre said: “In comparison, as far as India is concerned, the age of marriage for male and female is fixed as 21 and 18 years as per Child Marriage Prohibition Act, 2006. The definition of the term “child” varies from statute to statute and as per the POCSO Act any person below 18 years is considered to be “child” and it criminalizes all sexual activities for those under the age of 18 years, even if the act was committed by consent.”

Justice Dangre also pointed out that Justice Deepak Kumar Agarwal, a Judge on the Gwalior Bench of Madhya Pradesh High Court has requested the Central Government to reduce the age of the female to 16 and observed that the present age of 18 is disturbing the fabric of the society, as it is upon the adolescent’s choice.

Interpreting the Indian laws, she said: “….even if a boy aged 20 indulges with a girl aged 17 years and 364 days, he would be found guilty of committing rape, despite the girl clearly admitting that she was equally involved in the act of sex. The minor is not considered to be capable enough to give valid consent in the eyes of the law for entering into consensual sex.”