Law Regarding Consensual Intercourse with Minors in India

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Law is a mere reflection of the interest of its society. In a modern society, any change with time is certain. With ever evolving contemporary ideas and perceptions from different groups of people, it is common for the law making bodies to face hardship to take quick decision when it comes to conflict of interests.

Such is the condition of every country, struggling to answer the irresolvable question, ‘At which age is it right for a minor to consent to indulge oneself in a sexual intercourse and is it ethical to allow a minor to have a consensual intercourse?’.

The Court is under immense pressure while dealing with the current issue, because every decision made regarding the same reflects the tradition, culture and history of the country.

The word “consent”, is the manifestation one’s actual will to do any act. “Will”, on the other hand is the mere desire to do an act. Therefore, any person who engages in a sexual intercourse with another person with will and no consent becomes liable and held guilty for committing sexual offence.

Until 2017, the IPC did not recognize marital rape, when the SC brought down the exception to Sec. 375, vesting men the right to consummate marriages with their wives under the age of 15-18, in its judgment of the case Independent Thought v. Union of India.

This law curbs the right of consent to all women who are legally married i.e. wife, who is below the age of 18 is restricted from a sexual relation and after attaining majority she has no power to reject due to presumption of matrimonial consent.

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What is the concept of ‘statutory rape’ among minors?

Any form of sexual relationship between two minors, irrespective of their consent is known as statutory rape, which is unlawful because either parties of such act is below the legal age to get involved sexually, further making them incapable of giving their consent to the said act. Hence, the consent is irrelevant.

Statutory rape falls under Section 375 and 376 of Indian Penal Code. The Convention of Elimination of Discrimination against Women (CEDAW) supports the view of withdrawing the legal effect on child marriage. Due to this, after 1980, India treats child marriage as voidable.

The other 3 major reforms in the sexual intercourse laws of India:

1. Protection of Children from Sexual Offences Act, 2012

• CHAPTER II of the Act:

In order to protect the children from any form of sexual assault, sexual harassment to which they are incapable of giving their consent, such as

1. Penetrative Sexual Assault
2. Aggravated Penetrative Sexual Assault
3. Sexual Assault
4. Aggravated Sexual Assault
5. Sexual Harassment
6. Chapter III of the Act

Under this chapter using child for pornographic purposes and about the respective punishments are defined.

• Section 2(d) of the POCSO Act defines a ‘child’ as to any person below the age of 18. This act provides justice without any gender discrimination as every person under the age of 18 who are incompetent to give their consent. Hence, any person, involved with any sexual act covered under this act and the victim involved is under the age of 18, the offence is punishable as it is considered to be violation of this Act.
• Section 34(1) states on offence committed by the offender, who is a child himself, shall be tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
• Sec. 19 of the Act encourages and make it obligatory to report such crime to the Special Juvenile Police Unit or the local police enshrined in POCSO, failure of which is punishable with imprisonment of either description which may extend to six months or with fine or with both.

2. Criminal Law (Amendment) Act, 2013: Sexual Offences

a) Protection of Children from Sexual Offences Act, 2012.

• The age of a “child”, was reduced from 18 years to 16 years under Section 2(d).
• Punishment for rape under the act was increased from 7 years imprisonment to 10 years imprisonment and fine.
• Section 42: An act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509, 376AB, 376DA, and 376DB  of IPC, where the offender shall be liable to punishment under this Act or under the Indian Penal Code.

b) Code of Criminal Procedure (CrPC), 1973

• Section 161: An alleged woman against whom, any such offence has been committed shall be recorded, by a woman police officer or any woman officer under.
• Section 273: states that while recording the evidence of a victim woman below the age of 18, the court will ensure that such woman is not confronted by the accused.

2. Criminal Law (Amendment) Ordinance, 2018

A law initiated primarily to amend certain laws related to rape of minors.

1. Indian Penal Code (IPC), 1860
2. Enhanced the punishment for rape under IPC, where the minimum imprisonment has been increased from seven years to ten years rigorous imprisonment.
3. Then

Age Group	Offence	Punishment
Below 12 years	Rape	Rigorous imprisonment from 20 years extendable to life imprisonment, and fine
Gang Rape	Life imprisonment and fine.
Below 16 years	Rape	Minimum rigorous imprisonment of 20 years that can be extendable to life imprisonment and fine.
Gang Rape	Life imprisonment, along with fine.

b) Code of Criminal Procedure (CrPC), 1973

• The maximum time limit to complete investigation was decreased from three to two months.
• An appeal in any rape case has to necessarily be disposed off within six months.
• No anticipatory bail to be granted to the alleged accused of sexual assault against minor girls below the age of 12 and 16.

c) Indian Evidence Act, 1872

To determine the consent of the victim, his past sexual experiences are disregarded. This provision was extended to include girls below 12 and 16 years of age as victims.

LAWS GOVERINIG OTHER COUNTRIES AROUNG THE GLOBE:

COUNTRY	LAW	AGE OF CONSENT
JAPAN	The Penal Code of Japan.Juvenile Obscene Act.The Civil Codes.	13 years     15-18   20 years
GERMANY	Penal CodeCriminal Code	14 years14 – 16 years
MEXICO		16 – 18 years
FRANCE	Penal Code	15 years
RUSSIA	Criminal Code	16 years

What is the reasoning for criminalizing consensual intercourse?

The British Jurist of the 18^th century, Sir Matthew Hale defined rape as, “An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

After sheer struggle, some feminists have favored these laws, as it is the yardstick to combat the sexual abuse of young girls. A statutory rape charged, would not require proof of force or coercion, therefore young and vulnerable girls are, guarded against such crimes committed by the adults and actual rapists via deterrence and real possibility of retribution.

It is legally required to have a right and a set age for the same, without any moral obligation. Specifically, in a country where the age of consent for a married woman is lower than an unmarried woman and where marriage is taken as a license to rape, this must be reformed.

The law relating to Statutory rape must be stringent as this section of society seeks to protect minors who are mentally- incapacitated as well. As stated earlier, minors are incapable to understand the dire consequences of their actions and desires, it is the duty of law to protect the innocence of the youth.

In conclusion…

Maybe, the laws of consent must be flexible and realistic just to ensure and minimize the victim rate. Similarly one must be, appreciated for attaining sexual maturity quicker, enabling them to make choices about their own bodies. 

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To give up one’s “virtue” to a person who is unworthy and most importantly unwilling to pay with his hand in marriage is gimmick and speaks about the poor judgment of the youths of today.

The forbidden fruit is always more lucrative and severe restrictions fuels curiosity. By criminalizing consensual sexual activity, we deny them access to protective and safe medical procedures. This becomes one of the reasons for the increase in abortions.

A law fixing the age of consent must be, understood in a manner that protects our children against abuse as well as prosecution. These laws should serve an educative purpose and provide reformative punishments.

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Author: R. Danyuktaa Shruti from VIT University, Chennai.

Editor: Tamanna Gupta from RGNUL, Patiala

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