POCSO Act 2012 And Age Of Consent
What should be minimum age of giving valid consent for entering into sexual
relationship? When it can be said that a female or male is capable enough to
give a valid consent in the eye of law for entering into a consensual sex? This
topic has become a hot topic again in India in view of observation made by
Honorable Supreme of India regarding misuse of POCSO Act 2012.
Before delving into issue, we have to look into origin of child marriage. In
India , child marriage had been a social tradition since long, especially since
the age of Medieval history. When we read biography of various leaders or saint
in the past, it came to our notice that many of such leaders or saint
got married when they were minor only. One of such example is marriage of
Mohandas Karam chand Gandhi, who was married to his wife Kasturba Gandhi, when
both of them were minor only. Even in case of Ramakrishna Paramhans also, it was
a case of child marriage.
Last few decades also witnessed many burning example of Child Marriage. Who does
not know the cases of Dacoit Phoolan Devi, who was married when she was just a
minor.? When ever such cases happened, it always resulted in traumatic
experience to a female minor, sometimes resulting into her death also. Phoolan
Devi also undergone such traumatic experience when her husband tried
to consummate. Indian Director Shekhar Kapoor highlighted this aspect of her
life in controversial Movie namely Bandit Queen.
Origin of such tradition traces it's origin from the time of attack of foreign
invaders. When India was attacked by the foreign invaders , many of Indian woman
were married to soldiers of such invaders. Similarly Indians had to fight
invaders again and again and Indian woman were to meet the same fate again and
again. To get rid of such situation and out of then prevailing social
insecurity, the tradition of child marriage began.
Apart from this, if we read medieval history of India, it is evident that
Indian Kings and Generals kept on fighting with each other in order to protect
their respective honour , dignity and in order to expand their state. This
resulted into killings of many young male population of that time. It might be
another reason for origin of such Tradition in India. Though it may be right at
that time, but by passage if time , this tradition result into death of many
In nineteenth century one of such case resulted into enactment of Age of
consent Act 1891 in then British India. There was one female minor namely
Phulmony devi, who at the age of 10-12 married to a man of 35 years old. She
died as her husband forcibly tried to consummate. This events results into
enactment of Age of consent Act 1891.
By passage of time, this age of consent has been kept on increasing by various
legislation. Presently it has been increased as 18 in India. Effect of this is
that if a female or male minor enter into sexual relationship with her/his
counter part, in case complaint is filed, the other one can be convicted for
rape. It means , the consent given by a female or female who is less than 18
years , does amount to be no consent in the eyes of law. The minor are not
considered to be mature enough to give valid consent for sexual activity in the
eye of law.
This act hold good even in Modern age also. Often we find that in a family, aged
male members tries to sexually harass a female minor. Not only in a case of
family relationship, female minor may also be subjected to sexual harassment at
playing field, School or any other places. Idea was to protect minor from such
This act protects a minor from being cajoled by the older ones from entering
into sexual activity. In office or society, the older ones who try to persuade a
minor for sexual act, they can be convicted for rape charges. In case
any complaint is filed against such person, he may be convicted for offence, as
a minor is not considered as matured enough to give valid consent.
In order to protect a minor from sexual harassment, Indian Government further
enacted POCSO Act 2012 (The protection of Child from Sexual offences Act 2012).
This act further strengthen protection of minor. But recently many cases have
been reported , in which this Act has been misused.
Teenagers fall into sexual relationship with each other and when out of family
pressure, their relation ship is terminated, in most of cases male minor is
accused of rape charges. As in the eyes of law, this age does not amount to be
legally valid age for such sexual relationship. Resultantly male minor is always
at the receiving end of society and the law.
This year itself, i.e. , in the month of March 2021, the Honorable Supreme Court
of India has raised concern about raising number of cases where minor are
punished under POCSO ACT 2012. In Tamil Nadu one of such case came in which
notice was issued by the Honorable Supreme Court. It was case where a female
minor and male minor developed sexual relationship while studying in school.
Later male minor refused to marry female minor, aggrieved of which complaint was
When the complaint was filed, by that time , the male minor turned 18 while the
female minor remain a minor. Matter was prosecuted in trial court and later on
before High Court. During the course of proceeding, the female minor took the
stand that she was no more aggrieved as now both of them are staying together in
Live in relationship and are intending to marry in future.
Female minor further took the stand that it was case of consensual sex by
teenager. Still male minor was convicted under POCSO Act. Male minor has now
approached the Honorable Supreme Court of India with the argument that POCSO Act
does not mean to include consensual sex in case of minor. This the case, in
which Honorable Supreme Court of India has issued the notice.
This case has further ignited the issue of consensual sex in case of
teenagers. Question is this, when out of physical attraction or infatuation when
Teenager enter into sexual relation, then what measure should be taken to
protect them? There should be some safeguard for such minor, as argued by the
male minor in the afore mentioned as , as discussed.
Indian Law maker should take guidance from recent movement which are going on
across the world and various steps which have been taken by various government
in this regard. Through out the world, the age of consent has been kept on
increasing. It varies from the range of 16 years to 18 years in most of the
country. Surprisingly the age of consent in Nigeria is 11 years while in
South Korea, it is 20 years. In case of Baharain, the age of consent is 21
years. Thus presently age of consent through out the world vary from 11 to 21.
Though in most of the country, 18 years is considered as acceptable age,
including in India.
In Japan also a movement is going on to increase age of consent to 16 years.
This movement is basically supported by students , though public support is also
coming slowly and gradually. Almost 40,000 students signed a Petition to
increase legally valid age of consent to increase from 13 to 16. In Philippines
also the Government has introduced a Bill to increase age of consent as 16.
Similarly French Government is also in the process of enacting such law to
protect minors and the valid age of consent to be considered as 15. Earlier
there was no such law in France to protect minor from entering into sexual
relation. Now the French Government is proposing such bill to make age of
consent as 15. However one safeguard has been provided to such minors, where
the age difference is till the extent of 5 years.
For example, if boy is 18 and girl may be from 13-17, then even if they enter
into sexual relation, boy can be protected. Similarly if girl is 16-17 and boy
is 21-22 , even in such cases, boy can be protected as it is considered as
outcome of love-cum-sexual relation of teenager. This clause is term as Romeo
Juliet clause. This clause is termed as so as such cases are result of
infatuation in teenage as was the case of Romeo Juliet.
Though directly not related to age of consent, but there is one more collateral
issue related to unwanted pregnancy of a female minor, which is often result of
such immature relationship. The Government of India has notified few amendments
in Medical Termination of Pregnancy Act and Insurance Act.
This amendment further enhance the maximum period of unwarranted pregnancy till
the period of 24 Weeks. Earlier the maximum period of unwarranted pregnancy was
till 20 weeks of conception of week. Off course certain condition have been
laid down for termination of unwarranted pregnancy till 24 Weeks. It is also a
welcome move by Indian Government , which will allow the minor female to get rid
of unwarranted pregnancy.
Only law making is not enough. Minor should also be appropriately educated to
deal with such situation. Society awareness is also required to be enhanced to
tackle such situation. Without support of society, a law can not practically
implemented effectively. One of such burning examples is Dowry Prohibition Act.
Though law against dowry is in operation , but has become redundant because of
lack of support from Indian Society.
We have to look around and have to observe that what is happening around the
world in this regard. Australian Government has proposed new policy which is
being currently debated to be implemented in school. Now the Australian
Government is proposing a new education policy, according to which age of sexual
consent classes has to be incorporated in syllabus. Naturally this is going to
increase awareness amongst the minor.
Though it may appear to be a debatable issue, where the age of consent should be
lowered down to make it 15-16 in order to safeguard teenagers. As the dent given
to one teenager at this stage , carry life long. In case of India the age of
consent is 18 years. In order to weigh balance between minor protection and mis-use
of this weapon, the Government should carve out a middle path.
In POCSO Act 2012, some guidance could be taken by the proposed bill of French
Government and proposed insertion of Romeo Juliet clause. Such amendment is
required to be carried out in order to protect such teenagers, who often enter
into sexual relationship out of physical attraction or infatuation. Not only
this Indian Government should also think towards implementation of such
curriculum in School, as the Australian Government is proposing to do, which
will result in enhancement of awareness regarding age of consent amongst child.
Of course , some other social measures are also required to be taken which may
equip Indian Society in a better way to tackle this issue
Written By: Ajay Amitabh Suman
Law Article in India
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