When it can be said that a female or male is capable enough to give valid consent in the eye of law for entering into consensual sex? This topic has become a hot topic again in India in view of observation made by the Honorable Supreme of India regarding misuse of the POCSO Act 2012.

The origin of such tradition traces its origin from the time of the attack of foreign invaders. When India was attacked by foreign invaders, many Indian women were married to soldiers of such invaders. Similarly, Indians had to fight invaders again and again and Indian woman was to meet the same fate again and again. To get rid of such a situation and out of the prevailing social insecurity, the tradition of child marriage began.

Apart from this, if we read the medieval history of India, it is evident that Indian Kings and Generals kept on fighting with each other in order to protect their respective honour, dignity and in order to expand their state. This resulted in the killings of many young male populations of that time. It might be another reason for the origin of such Tradition in India. Though it may be right at that time, by the passage of time, this tradition results in the death of many girl minors.

In the 19th century, one such case resulted in the enactment of the Age of consent Act 1891 in then British India. There was one female minor namely Phulmony Devi, who at the age of 10-12 married a man of 35 years old. She died as her husband forcibly tried to consummate. This event results in the enactment of the Age of consent Act 1891.

With the passage of time, this age of consent has been kept on increasing by various legislation. Presently it has been increased to 18 in India. The effect of this is that if a female or male minor enter into a sexual relationship with her/his counterpart, in case a complaint is filed, the other one can be convicted for rape. It means, the consent given by a female or female who is less than 18 years, does amount to be no consent in the eyes of law. The minor is not considered to be mature enough to give valid consent for sexual activity in the eye of law.

This act holds good even in the Modern age also. Often we find that in a family, aged male members try to sexually harass a female minor. Not only in a case of family relationship but female minor may also be subjected to sexual harassment at the playing field, school or any other places. The idea was to protect minorities from such harassment.

This act protects a minor from being cajoled by the older ones from entering into sexual activity. In-office or society, the older ones who try to persuade a minor for sexual activity, can be convicted for rape charges. In case any complaint is filed against such person, he may be convicted for offence, as a minor is not considered mature enough to give valid consent.

In order to protect a minor from sexual harassment, the Indian Government further enacted the POCSO Act 2012 (The protection of Child from Sexual offences Act 2012). This act further strengthens the protection of minor. But recently many cases have been reported, in which this Act has been misused.

Teenagers fall into a sexual relationship with each other and when out of family pressure,  their relationship is terminated, in most cases male minor is accused of rape charges. As in the eyes of law, this age does not amount to be a legally valid age for such a sexual relationship. Resultantly male minor is always at the receiving end of society and the law.

This year itself, i.e., in the month of March 2021, the Honorable Supreme Court of India has raised concern about the rising number of cases where minor are punished under POCSO ACT 2012. In Tamilnadu, one such case came in which notice was issued by the Honorable Supreme Court. It was a case where a female minor and a male minor developed a sexual relationship while studying in school. Later male minor refused to marry the female minor, aggrieved of which complaint was filed.

When the complaint was filed, by that time, the male minor turned 18 while the female minor remains a minor. The matter was prosecuted in the trial court and later on before High Court. During the course of proceeding, the female minor took the stand that she was no more aggrieved as now both of them are staying together in Live in a relationship and are intending to marry in future.

The female minor further took the stand that it was a case of consensual sex by a teenager. Still, the male minor was convicted under POCSO Act. Male minor has now approached the Honorable Supreme Court of India with the argument that the POCSO Act does not mean to include consensual sex in the case of a minor. This the case, in which the Honorable Supreme Court of India has issued the notice.

This case has further ignited the issue of consensual sex in the case of teenagers. The question is this, when out of physical attraction or infatuation when Teenager enter into sexual relation, then what measure should be taken to protect them? There should be some safeguard for such minor, as argued by the male minor in the aforementioned as, as discussed.

Indian Lawmaker should take guidance from a recent movement which is going on across the world and various steps which have been taken by the various government in this regard. Throughout the world, the age of consent has been kept on increasing. It varies from the range of 16 years to 18 years in most of the country. Surprisingly the age of consent in Nigeria is 11 years while in South Korea, it is 20 years. In the case of Bahrain, the age of consent is 21 years. Thus presently age of consent throughout the world vary from 11 to 21. Though in most of the country, 18 years is considered an acceptable age, including in India.

In Japan also a movement is going on to increase the age of consent to 16 years. This movement is basically supported by students, though public support is also coming slowly and gradually. Almost 40,000 students signed a Petition to increase the legally valid age of consent to increase from 13 to 16. In the Philippines also the Government has introduced a bill to increase the age of consent to 16.

Similarly, French Government is also in the process of enacting such a law to protect minors and the valid age of consent to be considered as 15. Earlier there was no such law in France to protect minor from entering into sexual relationships. Now the French Government is proposing such a bill to make the age of consent 15. However, one safeguard has been provided to such minors, where the age difference is to the extent of 5 years.

For example, if the boy is 18 and a girl maybe from 13-17, then even if they enter into sexual relation, the boy can be protected. Similarly, if a girl is 16-17 and a boy is 21-22, even in such cases, a boy can be protected as it is considered as an outcome of love-cum-sexual relation with a teenager. This clause is term as Romeo Juliet clause. This clause is termed as so as such cases are the result of infatuation in teenage as was the case of Romeo Juliet.

Though directly not related to the age of consent, there is one more collateral issue related to the unwanted pregnancy of a female minor, which is often the result of such an immature relationship. The Government of India has notified few amendments in the Medical Termination of Pregnancy Act and Insurance Act.

This amendment further enhances the maximum period of unwarranted pregnancy till the period of 24 Weeks. Earlier the maximum period of unwarranted pregnancy was till 20 weeks of conception of the week. Of course, the certain condition has been laid down for termination of unwarranted pregnancy till 24 Weeks. It is also a welcome move by the Indian Government, which will allow the minor female to get rid of unwarranted pregnancy.

Only lawmaking is not enough. Minor should also be appropriately educated to deal with such a situation. Society awareness is also required to be enhanced to tackle such situation. Without the support of society, a law can not practically be implemented effectively. One of such burning examples is Dowry Prohibition Act. Though the law against dowry is in operation but has become redundant because of lack of support from the Indian Society.

We have to look around and have to observe that what is happening around the world in this regard. Australian Government has proposed a new policy which is being currently debated to be implemented in school. Now the Australian Government is proposing a new education policy, according to which age of sexual consent classes has to be incorporated in the syllabus. Naturally, this is going to increase awareness amongst the minor.

Though it may appear to be a debatable issue, where the age of consent should be lowered down to make it 15-16 in order to safeguard teenagers. As the dent given to one teenager at this stage, carry life long. In the case of India, the age of consent is 18 years. In order to weigh the balance between minor protection and misuse of this weapon, the Government should carve out a middle path.

In POCSO Act 2012, some guidance could be taken by the proposed bill of the French Government and proposed insertion of the Romeo Juliet clause. Such an amendment is required to be carried out in order to protect such teenagers, who often enter into a sexual relationship out of physical attraction or infatuation.

Not only this Indian Government should also think towards the implementation of such a curriculum in School, as the Australian Government is proposing to do, which will result in enhancement of awareness regarding the age of consent amongst the child.

Of course, some other social measures are also required to be taken which may equip Indian Society in a better way to tackle this issue.

Written By: Ajay Amitabh Suman Advocate: Hon'ble High Court Of Delhi