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I'm confused about the age of consent for sexual relations. Is it 18 or 16?
IPC (1860) has various sections like 375 which criminalises sex with girl under 18years of age even with her consent. But some High Court and Supreme Court delivered judgements which conflict with IPC (section 375 etc).
So in light of latest laws (like POCSO Act etc), what exactly is the age of consent in India? (Is it gender neutral?)
Edit : For further reading on this issue this news article is helpful.
Independent Thought vs Union Of India (2017) apparently states the law of India, presently, and the answer is, 18. India being a common law country, the Supreme Court has the power to interpret the law when the statutory language might suggest something else. The issue is that marital intercourse is often an exception to rape laws (India does not recognize rape between husband and wife). The court ruled that "sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not". The court found the legal distinction between married girls and unmarried girls to be unnecessary and artificial, discriminatory, and not in the best interest of the girl child. They leave untouched the lack of application of rape law to married couples over 18. This extends legal prohibitions beyond what is stated in POCSO, a law discussed in para 37 ff of the ruling. One can detect in degree of dissatisfaction on the court's part with the legislature's failure to reach the conclusion that they announce.
Section 42-A of the POCSO Act, lays down two important principles. Firstly, that this Act is not in derogation of any other Act which was legislated by a competent legislator and secondly this Act has an overriding effect.
If any other law or any other provision of law comes in conflict with the POCSO Act with the provisions of POCSO Act will have an overriding effect to the extent of such inconsistency. The inconsistent part of that other conflicting statute would be inoperative with the domain of working of the POCSO Act.
For example, the POCSO Act defines any sexual contact with a child as penetrative sexual assault. If any personal law of a person seeks exemption of making penetrative sexual assault on a child in the name of that personal law, then in that case the portion of the personal law which allows a person to make penetrative sexual assault on a child, would be overridden by the provisions of the POCSO Act and the person – accused would not be allowed to take a defence of personal law in the area governed by the POCSO Act.
This Section was inserted by way of an amendment. There are several laws that define the difference between being a major and minor in age. Under the provisions of POCSO Act any person under the age of eighteen years of age is a child and anyone who establishes a sexual relations to the child commits an offence under this Act. Explanation 2 to Section 375 IPC states that the sexual intercourse or sexual acts by a man with his own wife is not an offence of rape if the wife is not under fifteen years of age.
These two provisions of the POCSO Act and Indian Penal Code are inconsistent with each other. If a person takes a child whose age is more than 15 years but less than 18 years and first solemnizes a marriage with her and thereafter makes sexual intercourse with her. As per IPC his act will not be constituting the offence of rape and the same would fall within the exception 2 to the definition of Section 375 IPC defining the offence of the rape.
The Prohibition of Child Marriage Act 2006 (PCM) prohibits the marriage if at the time of such marriage the age of girl is less than 18 years and that of the boy is less than 21 years. A male above the age of 18 years of age for marrying a girl under 18 years of age. The PCM is silent on the sexual relations in a child marriage. It has extended legitimacy to the children born out of the child marriages. It appears thus indirectly that the law under PCM allows the sexual intercourse within a child marriage.
Hence if a boy of age more than 21 years of age solemnizes marriage to a girl under the age of 18 years and then establishes sexual intercourse with his wife then he would not be doing any offence under the IPC if the wife is more than 15 years of age. By way of that sexual intercourse, he would also not be doing anything unlawful under the PCM also but by such sexual intercourse he would be committing an offence of aggravated penetrative sexual assault on his wife. Section 5 POCSO Act provides a sentence with a minimum of 10 years which can be extended to life imprisonment in addition to the fine. Voluntariness of the child is of no legal consequence. It would be void ab initio.
In case of a conflict, as stated above among the provisions the POCSO Act and other act like Indian Penal Code and the Prohibition of Child Marriages Act, the provisions under the POCSO Act will have an overriding effect. This was introduced in the Act by way of Criminal Amendment Act 2013. Section 42A read with the definition of child and the offences under the Act has a great potential to lead to some unavoidable consequences. One such consequences could be related to the child marriages solemnized with a view to evade criminal prosecution.
Under the Prohibition of Child Marriage Act, 2006 (PCM Act), a child marriage is voidable at the instance of the child who was party to the marriage . This option to get the marriage annulled is to be exercised by the child party to the marriage within two years of attaining majority. Section 12 of the PCM Act stipulates the circumstances under which such a marriage of the child would be void. The grounds include ‘being taken or enticed out’ of the keeping of the lawful guardian or ‘being forced or compelled’ ‘by deceitful means’ to go from any place.
There have been innumerable cases in which girls between the ages of 16-18 years have left their homes on their own out of their love relations. They are reported to have gone with the boy of their choice. In such cases, as a matter of routine a case of kidnapping and rape (now with corresponding provisions of the POCSO Act) is invoked and the boy is charge-sheeted even from the days of pre-POCSO time.
A 15-year-old girl went with and subsequently married to a 22-year-old man. Based on a complaint by the mother, the couple was traced and the man was booked for kidnapping and rape under the IPC and Penetrative Sexual Assault POCSO Act. An Additional Sessions Judge rejected the view that the POCSO Act criminalizes even consensual sexual relationships, acquitted the accused, and observed:
I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the State and no individual below 18 years can be allowed to have pleasures associated with one’s body. In my opinion, it would neither serve the object of present enactment, nor the purpose of criminal law to hold the accused guilty on the ground that he had sexual intercourse with a girl below 18 years.
In a similar case a Muslim man was arrested for kidnapping and raping a 17-year-old girl. At his bail hearing, he claimed that the couple loved each other and intended to marry. Another Additional Sessions Judge rejected his bail and observed
Merely because both the girl and the accused happen to be from the same religion i.e. Muhammadan-whose Personal Law provides for a different age of marriage than the one provided under the statutory law of the land-does not mean any special indulgence is required to be given to the accused as far as criminal law of this land is concerned.
Further, the Judge held
Muslim parents are as much entitled to protect their minor daughters from sexual abuse and exploitation as any other Indian irrespective of religious considerations. No separate parameters can be adopted for Muslim offenders only because the complainant happens to be from the same religion.
A conflict in approach and views of judges is apparent from the aforementioned cases. These cases have posed considerable difficulties before the Courts and a lot more before the lawyers and still much more before the public.
They feel problem in understanding this conflicting approach of the laws and the courts also.
