'Sexual Acts Do Not Happen Only In Confines Of Marriage, Age Of Consent Has To Be Distinguished From Age Of Marriage': Bombay High Court

“The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect," Court observed.

It added,

"Whilst all children are entitled to be protected from sexual violence, such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk taking though not exposing them to inappropriate response, harm and danger. The penal approach towards adolescents’ sexuality has impacted their life to a barrier free access to sexual and reproductive health services”, the court observed.

Justice Bharti Dangre said that the criminalization of romantic relationships has burdened the justice system, consuming significant time and resources, while ultimately the victim turns hostile. It stressed the importance of striking a balance between the protection of vulnerable class and those capable of deciding what is right for them.

“though it is the duty of the State to safeguard the ability to take decisions and to protect the autonomy of the individual, the adolescents cannot be deprived of this right. The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes”, the court held.

The court made these observations while acquitting a man convicted under the Protection of Children from Sexual Offences Act (POCSO Act) for raping a minor girl in 2016. Both the man (25-years-old in 2016) and the girl (17-year-old in 2016) claimed that they were in a consensual relationship. The girl also stated that under Muslim law, she was an adult due to her Nikah (marriage) with the accused.

The trial court had observed that while the relationship was consensual, the girl was aged 17 years and 5-6 months and a sexual relationship with her would amount to rape, as a minor’s consent is immaterial. The High Court noted that the evidence clearly established consensual sexual activity, and the conviction was erroneous.

India has probably one of the highest age of consent globally with 21 years for men and 18 years women as per Child Marriage Prohibition Act, 2006, the court remarked. Germany, Italy, Portugal, and Hungary, having age of consent as 14 years, the court said, adding that the age of consent is 16 in London and Wales and 13 in Japan. The court stressed the importance of recognizing, in both society and the judicial system, the distinction between the age of consent and the age of marriage.

“it is high time that our country is also cognizant of happenings around the world…It is necessary that our country will have to look around and observe all that is happening around the world in this regard…Ultimately, it is for the Parliament to ponder upon the said issue, but being cognizant of the cases, which are coming before the Courts, with a huge chunk, being the romantic relationship”, the court further remarked.

The court noted that under the current statute, a girl under the age of 18 is expected not to engage in sexual activity. The court illustrated this by a scenario where a 20-year-old boy engages in sexual activity with a girl aged 17 years and 364 days, just a day short of majority. Despite the girl being an active participant, the boy would be found guilty of rape since the minor is not considered capable of giving valid consent in the eyes of law for entering into consensual sex, the court said.

The court opined that the current provisions fail to consider societal realities and assume that every sexual engagement with a minor, regardless of their capacity to be an equal participant, constitutes rape. This results in the acquittal of accused in consensual relationships where there is a small age difference between the parties involved, the court said.

The court noted that the POCSO Act was meant to combat sexual exploitation of children and was never meant to criminalize consensual relationships among adolescents. It emphasized that sexual autonomy encompasses the right to engage in desired sexual activities while also being protected from unwanted sexual aggression.

The court highlighted the challenges faced in moderating youth's behaviour in the digital age, where adolescents have easy access to the internet mobile, OTT platforms, movies etc., which create a deep impact upon their minds, coupled with inquisitiveness about sex and may have both positive and negative influences.

“Adolescence is a period during which individual's thought perception as well as response gets colored sexually. It is an age to explore and understand sexuality. Sexual curiosity in the adolescence often lead to exposure to pornography, indulgence in sexual activities, and also increase in the vulnerability for sexual abuse…easy accessibility of information made available and as Internet has become widely used resource for sexual information, especially amongst the adolescents…which may have positive as well as negative influences, upon the youth of today”, the court observed.