Learn from the world, review age for consensual relationship: Bombay High Court

It is time for Parliament and the country to understand the changes in the world so as to reduce the age for legal consensual relationship, the Bombay High Court has said.

Justice Bharati Dangre passed an order to this effect on July 10, saying several countries have reduced the age of consent for adolescents to enter into a consensual sexual relationship.

This was a matter of concern as there were rising number of criminal cases under the Protection of Children from Sexual Offences (POCSO) Act where the accused are castigated even when the victims, being adolescents, maintain they were in a consensual relationship, the judge pointed out.

“Sexual autonomy encompasses both the right to engage in wanted sexual activity and the right to be protected from unwanted sexual aggression. Only when both aspects of adolescent’s rights are recognised, human sexual dignity can be considered to be fully respected,” the order said.

Man acquitted

The court’s remarks came following an appeal by a 25-year-old man challenging a February 2019 order of a special court convicting him for raping a 17-year-old girl.

The man and the girl claimed they were in a consensual relationship. The girl told the special court that under Muslim law, she was considered a major and hence she had Nikah with the accused man.

Justice Dangre quashed the conviction order and acquitted the man, noting the evidence on record had clearly made out a case for consensual sex.

The age of consent necessarily must be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage, the high court said.

The judicial system must take note of this important aspect, the judge said.

The age of consent in India was 16 from 1940 till 2012, when the POCSO Act raised the age of consent to 18 years. Most countries have set their age of consent in the range of 14 to 16 years, the court said.

Age for sex

In Germany, Italy, Portugal and Hungary, children in the age group of 14 are considered capable of giving consent to sex. In London and Wales, the age of consent is 16 and in Japan it is 13, the judge said.

Justice Dangre said in India a girl under 18 is expected not to indulge herself into a sexual activity and if she does, being an active participant in the activity, her consent is immaterial and is not a consent in the eyes of law.

As a result, even if a boy aged 20 indulges with a girl aged 17 years and 364 days, he would be found guilty of committing rape upon her despite the girl clearly admitting that she was equally involved in the act of sex.

It is high time “our country is also cognizant of happenings around the world”, Justice Dangre said in the judgment.

“It is necessary for our country to look around and observe all that is happening around the world in this regard,” she said.

The court said the POCSO Act, while intended to target sexual exploitation of children, however has created a grey area as it has definitely resulted in criminalising consensual adolescence and teenage relationship.

Romantic ties

The bench said while all children were entitled to be protected from sexual violence, such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk taking without exposing them to inappropriate response, harm and danger.

It said criminalisation of romantic relationships has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system.

(With agency inputs)