The Madras High Court in the case of Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors.,[1] said that consensual relationships between teenagers aged between 16 and 18 years who are infatuated or innocent should not come within the purview of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which awards not less than seven to 10 years of rigorous imprisonment for such acts.

It further said that a child should be redefined as someone below 16 years of age instead of the current 18. The Court was dealing with a case involving a runaway couple. A POCSO case was lodged by a man who alleged that the accused had kidnapped and committed penetrative sexual assault upon his 17-year old granddaughter. The accused in the case was the granddaughter’s co-student, who was above the age of 18 years.

India is a signatory to international conventions which prescribe that the age of children is 18. The Juvenile Justice Act, the POCSO Act, the National Commission for Protection of Child Rights and other related Acts all say that up to 18 years, a boy or girl is considered a child. One can vote, open a bank account and own a property when he/she attains the age of 18. But POCSO has decreased the age of a child to 16. The relationship between a girl under 18 years of age and a teenage boy or little over the teenage years cannot be construed as ‘alien’ or ‘unnatural’.

The protectionary provisions intended to protect children from sexual predators and child sexual exploitation are increasingly being used to penalise consensual sexual relationships amongst adolescents or between an adolescent and an adult. Both the POCSO Act and the Indian Penal Code set the age of consent at 18 years and deem minors incapable of giving consent.

Where two minors engage in a consensual sexual relationship, in a paradox, they stand both as victims and perpetrators vis-à-vis each other, although ground-level reality results in boys being overwhelmingly treated as perpetrators and girls as victims. Also, the punishment for having sex with a minor is minimum 10 years imprisonment under the POCSO Act and the mandatory minimum sentences under the law provides absolutely no discretion to judges to consider mitigating factors and impose a lesser sentence.

Pursuant to the Criminal Law Amendment Act of 2018, for having sexual intercourse with a child younger than 16 years, the punishment is a minimum of 20 years imprisonment which may be extended to imprisonment for the remainder of the life of the offender. These laws, enacted for the protection of children, betray a paternalistic approach under complete ignorance of the increasing sexual exploration among adolescents; a trend that is both healthy and part of the normal development of older children.

Also the Madras High Court in the case of Vijaylakshmi & Anr. v. State,[2] stated that:
An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. hese incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life.

Professor Ved Kumari, dean of Delhi University’s law faculty, stated that:
In consensual sex both are offenders or both are victims. It has been my long-held position that either both need to be tried under the JJ Act or both should go to the CWC (Child Welfare Committee). Normally the boy is tried under JJ and the girl is sent to CWC. They are equal partners. How can the two be treated differently?

In a study conducted by The Hindu[3] on 600 cases of sexual assault in the state of Delhi in 2013 (on both minors and adults) showed that amongst the cases fully tried, 40 percent dealt with consensual sex typically involving elopement of young couples and criminal complaints filed by the girls’ parents who object to such a union.

Also the Studies by the CCL-NLSIU[4] on the functioning of special courts under the POCSO Act, 2012, in five states, offer interesting insights into the way sexual relationships involving minors, and the consent of minors is treated by Special Courts. The Studies define ‘romantic cases’ as cases in which the victim admitted to being in a romantic relationship with the accused at any stage of the investigation or trial, or in which a romantic relationship was inferred by the judge based on the facts or evidence placed before her.

The treaty body of the UNCRC, the Committee on the Rights of the Child has also addressed the concerns relating to the statutory rape laws around the world and has categorically stated that:
States parties should take into account the need to balance protection and evolving capacities and define an acceptable minimum age when determining the legal age for sexual consent. States should avoid criminalising adolescents of similar ages for factually consensual and non-exploitative sexual activity.

In State v. Akhilesh Harichandra Mishra[5], the victim was 15-years-old when she eloped and married the accused. They had a child before the trial was completed. The accused was acquitted because the informant stated that the couple was married and she had no grievances. The Special Court noted that the matter had been compromised. It rejected the PP’s argument about consent being irrelevant under the POCSO Act.

In the UK, the age of consent is 16 years. In the US, it varies from 16 to 18 across States. It is 14 years in Germany and Italy and 15 in France. Our National Commission for Protection of Child Rights too had in 2010 proposed that any consensual sexual act should not be an offence when it involves two persons who are both above 14 and are either of the same age or the age difference is not more than three years.

The Constitutional Court of South Africa in 2013 had held as unconstitutional the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 which criminalised consensual sexual conduct of adolescents above 12 years and below 16 years of age in the case of Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development[6].

Sexual intercourse with a person below this age is considered statutory rape. To address the increasing number of adolescents and young person being punished for consensual sex, states additionally enacted laws termed as ‘Romeo and Juliet laws’ which provide for a defence in such cases. Romeo and Juliet laws provide some degree of protection to offenders of statutory rape laws where the minor has consented to the sexual intercourse, and where the age difference between the minor and the alleged offender is less (in many states, the permissible age gap is set at three years). An age-gap provision under which consensual sex with a person just a little older is prevalent in many jurisdictions. That prevents a much older person from exploiting the minor because crushes are also normal at this age.
Justice V Parthiban ruled,
‘… The definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years.

The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence, Justice V Parthiban observed, directing the government authorities to place the decision before the competent authority and initiate appropriate steps to explore whether the suggestions made by this Court are acceptable to all stakeholders.

While legal experts and child rights activists welcomed the redefinition of “child”, some of them called for further discussions on the suggestion for an amendment that would factor in the age difference.

End-Notes:

1. Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors., Criminal Appeal No.490 of 2018 (Mad. H.C.)
2. Vijaylakshmi & Anr. v. State, Crl. O.P (MD) No. 3775 of 2012 (Mad. H.C.) (India).
3. Rukmini S., Young love often reported as rape in our 'cruel society', The Hindu (JULY 31, 2014 01:29 IST), https://www.thehindu.com/news/national/stories-behind-sexual-assault-rulings-shine-light-on-reality-of-rape/article6265285.ece.
4. Centre for Child and the Law (CCL), National Law School of India University (NLSIU), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues, National Law School of India University (February 2018), https://ccl.nls.ac.in/wp-content/uploads/2017/01/Implementation-of-the-POCSO-Act-2012-by-speical-courts-challenges-and-issues-1.pdf.
5. State v. Akhilesh Harichandra Mishra, Spl. C. No. 165 of 2015 (India).
6. Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development, Case CCT 12/13 [2013] ZACC 35 (Constitutional Court of South Africa).