Revisiting Legal Age of Consent
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
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
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
Law Article in India
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