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The Bombay High Court's decision to release a 26-year-old man on bail after he is accused of sexually abusing a 13-year-old girl on the grounds of a rumoured romantic relationship raises concerns about consent and maturity. The historical background, contemporary court decisions, and the era of consent legislation in India highlight the necessity of subtle legal adjustments to safeguard vulnerable groups and promote individual agency, particularly for young girls. The following article attempts to understand the complex relationship of Consent and age of maturity.
Introduction
In a recent judgement, a 26-year-old man who was detained for allegedly sexually assaulting a 13-year-old girl has been granted bail by the Bombay High Court's Nagpur bench. The court noted that they (victim & accused) had a love affair and that their purported sexual connection seemed to be motivated by love rather than desire in awarding relief. The accused was granted bail in the case brought by the young girl's father. On behalf of the Nagpur bench, Justice Urmila Joshi-Phalke held that the accused was "of a tender age of 26 years and out of love affair, they came together" and that the girl had said that she had left her home freely.
It's both puzzling and contradicting to the traditional ideas of maturity and responsibility when a 26-year-old is described as "tender" in relation to a case involving a 13-year-old juvenile. This portrayal may lessen the seriousness of the claimed offence by obfuscating the distinction between adults and adolescents. In India, 18 is the legal age of consent for sexual activity; hence, it is illegal to engage in sexual conduct with someone younger than this. This age emphasises a uniform age requirement for both activities, since it coincides with the legal age of marriage for girls. Interestingly, males in India cannot marry until they are 21 years old, indicating a gender-based difference in the legal system. Discussions on the need for a more universal age requirement have been sparked by the varying age restrictions for marriage between genders.
A brief timeline of the ‘Age of Consent’
In India, the debate over the ‘age of consent’ and the ‘age of marriage’ has a long history that dates back to the British colonial period. The Age of Consent Act was enacted in 1891 as a result of the legal disputes around this topic, which date back to 1882. The purpose of this law was to increase the legal age of consent for sexual activity for all females, regardless of their marital status, from 10 to 12 years old in every jurisdiction. If this age limit is broken, there might be criminal charges for rape; however, females who are 11 years old and older are exempt from this rule.
In the Legislative Council of the Governor-General of India in Calcutta, the Age of Consent Act was met with opposition, especially from Hindu institutions. Such laws were prompted by notorious events, most notably the fatal incidents involving Phulmoni Dasi in 1889. The Phulomi Das marital rape case resulted in the tragic death of a 10 year old minor bride. As the autopsy revealed clear indications of severe vaginal injury the clear cause of death, the husband was acquitted because no law existed at the time, that defined punishment under marital rape. Another similar story of Rukhmabai, an 11-year-old Bengali girl, gained prominence as well; her tragic death heightened calls for judicial action.
The Age of Consent Act was passed by the British government in 1891 in response to popular uproar and the need to protect young people from early and non-consensual relationships. This law resolved the tension between marriage and consent age, strengthening the legal age restriction for sexual permission and taking a significant step towards the recognition of youth rights, especially for girls. The 1925 and 1940 revisions that followed mirrored changing societal standards. Remarkably, the age of consent for females was 16 until the Protection of Children from Sexual Offences (POCSO) Act was passed in 2012, demonstrating the historical development of consent legislation in India.
The age of consent in India was not clearly defined for males until the Protection of Children from Sexual Offences (POCSO) Act was passed in 2012. Rather, it was established under the Indian Penal Code (IPC) Section 375, which describes the offence of "rape." Notably, rape could only be perpetrated against women according to the legal standards in place at the time. As a result, only women were subject to the age of consent, and having intercourse with a woman of any age was seen as statutory rape. It's interesting to note that, prior to finally stabilising at 18 years under Section 375, the age of consent for females underwent a variable trajectory. This age restriction has changed historically, starting at 10 years old in 1860 and ending at 18 years old now. Neither the General Clauses Act of 1897 nor the IPC specifically defined "child" during this time, and there was no equivalent age of consent set for men. The POCSO Act's implementation in 2012 signalled a dramatic change in the laws pertaining to sexual offences against minors. The Act recognised the necessity for extensive legal measures to protect kids from sexual exploitation and abuse, even though it set a standard age of consent for both genders at 18 years old.
The Present Scenario
The Madras High Court proposed lowering the age of consent for sexual activity from 18 to 16 years old in a 2019 ruling that called for a re-evaluation of the requirement. Significant evidence indicates that parents may occasionally use the legal age of consent and child marriage laws to target partnerships involving inter-caste or inter-religious romances, especially those that the parents have not approved of. The accused, who was 19 years old at the time of the alleged offence, was charged with kidnapping and sexual assault of a 17-year-old girl in a particular case that was heard by the Madras High Court. The girl claimed that the connection was consensual. Still,the lower court found the accused guilty based on a dearth of evidence and pressure from family members who supported arranged marriages. The high court subsequently stated that it might be deemed that a girl who is older than 16 is mature enough to participate in consensual partnerships. The court also declared that it was against natural justice principles when a girl and boy, both under the age of eighteen, flee together and only the male receives punishment. The court further criticised the apparent injustice in these situations.
In a notable ruling, the Punjab and Haryana High Court emphasised that a young Muslim girl over 15 is entitled to marry anyone she chooses without the Prohibition of Child Marriage Act nullifying the union. This decision, however, departs from the global standard for limiting the marriage age that the recently adopted Prohibition of Child Marriage (Amendment) Act, 2021 seeks to achieve. There is fear that underage girls in consensual relationships may be victimised in India, where customary norms sometimes supersede carefully worded codified regulations, leading the male partner to face jail. If the age of consent is to be reduced, radical modifications must be made due to the intricacy of India's codified and customary rules. The Delhi High Court has voiced the opinion that the Protection of Children from Sexual Offences (POCSO) Act should not criminalise young people's consensual love relationships, but rather protect children from sexual abuse. Amendments regarding the age of consent must be made immediately in order to protect young teenagers' interests in the complex legal system.
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"Age of Consent under the Protection of Children from Sexual Offences Act, 2012," the 283rd report of the Law Commission, chaired by Justice Ritu Raj Awasthi, was recently made public. The Protection of Children from Sexual Offences Act (POCSO), 2012, currently sets the age of consent at 18, and the study urges the Union government against changing this age. The proposal stems from worries about the possible dangers of prostitution, child trafficking, and abuse. The report also urges the law ministry to add judicial discretion and make changes to the POCSO Act. This is meant to deal with circumstances in which a minor between the ages of 16 and 18 may have given their tacit approval, even in the absence of formal agreement. The objective is to offer a legal recourse for situations when the minor appears to be in agreement, even though their actions do not quite fit the legal definition of consent.
Conclusion
In conclusion, the crucial problem of the legal system's inability to prevent child weddings arranged by families has sadly been overshadowed by the continuing talks on amending Indian rape laws, particularly with regard to the age of consent for women. In addition to changes to the law, there is an urgent need for more public awareness, better security for women in public settings, and better educational possibilities in rural and urban underprivileged communities. If laws are the only thing on your mind, you might unintentionally reinforce patriarchal power relations and undermine young girls' ability to negotiate when it comes to choosing their marriages.
It is essential to have a complete plan that includes community sensitization, enhanced education, heightened security, and legal reforms. To close the gap between codified laws and the actual realities on the ground, however, significant and inclusive legislative adjustments are required given India's heterogeneous socio-cultural terrain. The ongoing need for comprehensive regulations that protect vulnerable populations and respect human agency in questions of consent and marriage is highlighted by recent conversations and court decisions. It is a plea for thoughtful, situation-specific changes that take into account the complex socio-cultural makeup of the nation and guarantee people's safety and self-determination within the legal system, particularly for young girls.
By Ujjwal Maan
The following Article has been written by Ujjwal Maan, a final year law student at University School of Law and Legal Studies, GGSIPU (IP main campus).
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