November 21, 2024

In a recent case in Punjab & Haryana High Court, Justice Anita Choudhary has ordered that anyone having sex with a girl below 16 years, even with her consent and active participation, would be considered a criminal. She upheld the order of the trial court which had found the appellant guilty of kidnapping and raping a minor girl of 15 years and had sentenced him for 10 years rigorous imprisonment. The judge observed that "a minor girl can be lured into giving consent for such an act without understanding the implications. Such consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast upon other person of not taking advantage of the so-called consent given by a girl who is less than 16 years of age." The appellant had argued that the girl had stayed with him, and it was a case of consensual sexual relationship. Hence he prayed for leniency and quashing of the prison term. The HC rejected his appeal on the grounds that a minor is incapable of thinking rationally and in both civil law and criminal law; the consent of a minor is not treated as valid.

There can be no argument with the judgment per se, but it shows once again that there is confusion in the minds of judges regarding the age of consent in India. As the judge said “consent given by a girl who is less than 16 years of age,” would she have acquitted the appellant if the girl was above 16 years? If so, that would have been against the law as the age of consent in India is 18 years according to all laws. So why is there confusion on this issue? The POCSO Act has 18 as the age of consent and any one engaging in sex with a person below that age even with express consent of the minor is liable to be punished. In the past too, designated POCSO judges have allowed relief to accused when it was found that 15 year olds had consensual sex with them. There was debate in Parliament during the passage of the POCSO bill where despite several arguments against it, the age of consent was kept at 18. The judiciary should take this into consideration and adhere to both the letter and the spirit of the law.