The Karnataka High Court observed that a significant number of cases are being registered under the Protection of Children from Sexual Offences (POCSO) Act because it does not acknowledge that adolescents can be involved in consensual sexual activities. In this regard, the Dharwad Bench consisting of Justices Suraj Govindaraj and G Basavaraja had also made a recommendation to the Law Commission for the age of consent for sexual relationships to be lowered from 18 to 16.
The Bench noted, “Having come across several cases relating to minor girls above the age of 16 years having fallen in love and eloped and in the meantime having had sexual intercourse with the boy, we are of the considered opinion that the Law Commission of India would have to rethink on the age criteria, so as to take into consideration the ground realities.”
The court was hearing a case where the mother of a 17-year-old girl filed a complaint against their neighbour alleging that he kidnapped her daughter to Goa and sexually assaulted her in 2015. While a case was registered against the 19-year-old man, the minor girl later said that it was a consensual relationship. He was booked under IPS sections 366 (kidnapping, abducting or inducing woman to compel her to marriage), 376 2(j) (commits rape on woman incapable of giving consent) and sections 5 and 6 of the Protection of Children from Sexual Offences Act (aggravated sexual assault and punishment for aggravated sexual assault). A chargesheet was filed in the Yellapur Circle police station and the man was arrested in January 2016. The man was given bail shortly after as there was not enough evidence against him. The Karnataka High Court was called into session to re-examine the evidence and ascertain if the judgement passed by the trial court was appropriate or not.
Several prosecution witnesses, including the mother who filed the complaint, turned hostile. The girl’s father said that his daughter was not kidnapped and was not aware that his wife had filed a complaint. The girl said that she and the man had gotten married in 2017 (after she had turned 19) and have two children now. She also added that there was no instance of kidnapping or sexual assault and that they are leading a comfortable life now. Based on the above statements, the court observed, “The evidence led by the prosecution does not in any manner establish any aggravated sexual assault committed by the accused on the victim. There is nothing on record to legally establish the guilt of the accused.” The man was acquitted of all charges against him.
The court made several observations about the age of consent mandated by the law. It said that if the parents of a girl file a complaint against a man that a minor girl older than 16 had eloped with, police begin investigations and trace the couple and file a chargesheet. It added, “The effect of such criminal prosecution of a minor girl and/or minor boy and/or boy who has attained majority recently, causes severe harm and injury to all the concerned including the families.” The judgement also noted that criminal prosecution, especially when the boy is taken into custody, could impact the couple’s relationship and cause misunderstandings between them.
The court also said that many of the ‘offences’ that are registered under the POCSO Act are committed “as a result of or on account of lack of knowledge on the part of the minor girl and the boy.” While the court said that it cannot be presumed that minors have knowledge of the law, it said that it is necessary for students, from class 9 onwards, to be educated on the various provisions of the POCSO Act, what activities are criminalised under it, and the Indian Penal Code (IPC). The court also directed a copy of the judgement to be forwarded to the chairman of the Law Commission.
The age of consent for sexual relationships has been a contentious subject. Until 2012, the age of consent was 16 and it had been so since 1940. However, the POCSO Act which came into force in 2012, criminalised all sexual activity with minors — including consensual sexual activity between minors. The Criminal Laws (Amendment) Act in 2013, which came after the sensational Nirbhaya gangrape case, raised the age of consent from 16 to 18 so that the age of consent law and POCSO were not at loggerheads. With this, any sexual activity with and between persons below the age of 18 was classified as statutory rape, even if it was completely consensual. The Justice Verma Committee, which was set up after the Nirbhaya gangrape to make amendments to the criminal laws in the country, reccommended the criminalisation of adolescent sex below the age of 16. Despite the recommendation, the then government increased the age of consent to 18 and this has been retained since 2013.
Welcoming the Karnataka High Court’s recommendation, Swagata Raha, Director of Enfold, an NGO that works to prevent child sexual abuse said that this is a timely decision. She added, “A significant number of cases are being registered under POCSO because it does not recognise that adolescents can be involved in consensual sexual activities.”
Swagata added that there needs to be a greater investment in providing comprehensive sexuality education to adolescents. She said, “The education, however, needs to be rights-based and reflect the understanding that adolescent sexuality is a normal part of development. It should also strengthen their decision making capabilities, and impart them with an understanding of informed consent, health rights and personal safety.”
Speaking to TNM, Vidya Reddy, co-founder of Tulir (Centre for the Prevention and Healing of Child Sexual Abuse), said that the recommendation made by the Karnataka High Court was brilliant. “If you speak to any adolescent paediatrician, they will say that this [exploring one’s sexuality] is a part of adolescence and criminalising them for it is conflicting. The percentage of cases against boys younger than 18 filed by parents of girls and even government functionaries is quite high and is clogging the system. The actual victims who are seeking justice are being sidelined,” she said.
A study conducted by The Hindu in 2013 analysed all the sexual assault cases (600) that were heard in the district court in Delhi for a period of six months. They discovered that out of the 460 cases that were argued in court, 189 involved consenting couples. In 174 out of the 189 cases, the complaints were filed by the parents of the girl. In 107 cases, the woman who filed the ‘complaint’ deposed that they had eloped with their partner and had married them. Some even had children. The girls have also deposed that they faced abuse at the hands of their parents — ranging from being threatened to being beaten up and even being forced to undergo medical examination and abortions.The study further noted that a majority of the cases involved inter-caste or inter-religious couples. Since parents, mostly of the girl, do not agree to the relationship, they file a complaint against the boy who is usually not older than 18 or recently became a major, in a bid to separate the couple and gain custody of the girl.
Vidya added that reducing the age of consent will be more in tune with reality. She said, “When the POCSO was first drafted, the age of consent was 16. This was passed through the Rajya Sabha as well. But when it went through the Lok Sabha, it was changed to 18. This indicates that the legislators were aware that when a 16-year-old gives complete consent without any coercion, cajoling or blackmail, it should be acknowledged. And that is the ground reality as well. Revising the age of consent will make the law more congruent with reality.”