The Madras High Court in the case of Sabari @ Sabarinathan @ Sabarivasan
v. The Inspector of Police & Ors
., said that consensual relationships
between teenagers aged between 16 and 18 years who are infatuated or innocent
should not come within the purview of the Protection of Children from Sexual
Offences (POCSO) Act, 2012, which awards not less than seven to 10 years of
rigorous imprisonment for such acts.
It further said that a child should be redefined as someone below 16 years of
age instead of the current 18. The Court was dealing with a case involving a
runaway couple. A POCSO case was lodged by a man who alleged that the accused
had kidnapped and committed penetrative sexual assault upon his 17-year old
granddaughter. The accused in the case was the granddaughter’s co-student, who
was above the age of 18 years.
India is a signatory to international conventions which prescribe that the age
of children is 18. The Juvenile Justice Act, the POCSO Act, the National
Commission for Protection of Child Rights and other related Acts all say that up
to 18 years, a boy or girl is considered a child. One can vote, open a bank
account and own a property when he/she attains the age of 18. But POCSO has
decreased the age of a child to 16. The relationship between a girl under 18
years of age and a teenage boy or little over the teenage years cannot be
construed as ‘alien’ or ‘unnatural’.
The protectionary provisions intended to protect children from sexual predators
and child sexual exploitation are increasingly being used to penalise consensual
sexual relationships amongst adolescents or between an adolescent and an adult.
Both the POCSO Act and the Indian Penal Code set the age of consent at 18 years
and deem minors incapable of giving consent.
Where two minors engage in a consensual sexual relationship, in a paradox, they
stand both as victims and perpetrators vis-à-vis each other, although
ground-level reality results in boys being overwhelmingly treated as
perpetrators and girls as victims. Also, the punishment for having sex with a
minor is minimum 10 years imprisonment under the POCSO Act and the mandatory
minimum sentences under the law provides absolutely no discretion to judges to
consider mitigating factors and impose a lesser sentence.
Pursuant to the Criminal Law Amendment Act of 2018, for having sexual
intercourse with a child younger than 16 years, the punishment is a minimum of
20 years imprisonment which may be extended to imprisonment for the remainder of
the life of the offender. These laws, enacted for the protection of children,
betray a paternalistic approach under complete ignorance of the increasing
sexual exploration among adolescents; a trend that is both healthy and part of
the normal development of older children.
Also the Madras High Court in the case of Vijaylakshmi & Anr. v. State
An adolescent boy and girl who are in the grips of their hormones and biological
changes and whose decision-making ability is yet to fully develop, should
essentially receive the support and guidance of their parents and the society at
large. hese incidents should never be perceived from an adult's point of view
and such an understanding will in fact lead to lack of empathy. An adolescent
boy who is sent to prison in a case of this nature will be persecuted throughout
Professor Ved Kumari, dean of Delhi University’s law faculty, stated that:
In consensual sex both are offenders or both are victims. It has been my
long-held position that either both need to be tried under the JJ Act or both
should go to the CWC (Child Welfare Committee). Normally the boy is tried under
JJ and the girl is sent to CWC. They are equal partners. How can the two be
In a study conducted by The Hindu on 600 cases of sexual assault in the state
of Delhi in 2013 (on both minors and adults) showed that amongst the cases fully
tried, 40 percent dealt with consensual sex typically involving elopement of
young couples and criminal complaints filed by the girls’ parents who object to
such a union.
Also the Studies by the CCL-NLSIU on the functioning of special courts under
the POCSO Act, 2012, in five states, offer interesting insights into the way
sexual relationships involving minors, and the consent of minors is treated by
Special Courts. The Studies define ‘romantic cases’ as cases in which the victim
admitted to being in a romantic relationship with the accused at any stage of
the investigation or trial, or in which a romantic relationship was inferred by
the judge based on the facts or evidence placed before her.
The treaty body of the UNCRC, the Committee on the Rights of the Child has also
addressed the concerns relating to the statutory rape laws around the world and
has categorically stated that:
States parties should take into account the need to balance protection and
evolving capacities and define an acceptable minimum age when determining the
legal age for sexual consent. States should avoid criminalising adolescents of
similar ages for factually consensual and non-exploitative sexual activity.
In State v. Akhilesh Harichandra Mishra
, the victim was 15-years-old
when she eloped and married the accused. They had a child before the trial was
completed. The accused was acquitted because the informant stated that the
couple was married and she had no grievances. The Special Court noted that the
matter had been compromised. It rejected the PP’s argument about consent being
irrelevant under the POCSO Act.
In the UK, the age of consent is 16 years. In the US, it varies from 16 to 18
across States. It is 14 years in Germany and Italy and 15 in France. Our
National Commission for Protection of Child Rights too had in 2010 proposed that
any consensual sexual act should not be an offence when it involves two persons
who are both above 14 and are either of the same age or the age difference is
not more than three years.
The Constitutional Court of South Africa in 2013 had held as unconstitutional
the provisions of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007 which criminalised consensual sexual conduct of adolescents
above 12 years and below 16 years of age in the case of Teddy Bear Clinic for
Abused Children v. Minister of Justice and Constitutional Development.
Sexual intercourse with a person below this age is considered statutory rape. To
address the increasing number of adolescents and young person being punished for
consensual sex, states additionally enacted laws termed as ‘Romeo and Juliet
laws’ which provide for a defence in such cases. Romeo and Juliet laws provide
some degree of protection to offenders of statutory rape laws where the minor
has consented to the sexual intercourse, and where the age difference between
the minor and the alleged offender is less (in many states, the permissible age
gap is set at three years). An age-gap provision under which consensual sex with
a person just a little older is prevalent in many jurisdictions. That prevents a
much older person from exploiting the minor because crushes are also normal at
Justice V Parthiban ruled,
‘… The definition of ‘Child’ under Section 2(d) of the POCSO Act can be
redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily
contact or allied acts can be excluded from the rigorous provisions of the POCSO
Act and such sexual assault, if it is so defined can be tried under more liberal
provision, which can be introduced in the Act itself and in order to distinguish
the cases of teen age relationship after 16 years, from the cases of sexual
assault on children below 16 years.
The Act can be amended to the effect that the age of the offender ought not to
be more than five years or so than the consensual victim girl of 16 years or
more. So that the impressionable age of the victim girl cannot be taken
advantage of by a person who is much older and crossed the age of presumable
infatuation or innocence, Justice V Parthiban observed, directing the government
authorities to place the decision before the competent authority and initiate
appropriate steps to explore whether the suggestions made by this Court are
acceptable to all stakeholders.
While legal experts and child rights activists welcomed the redefinition
of “child”, some of them called for further discussions on the suggestion for an
amendment that would factor in the age difference.
- Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors.,
Criminal Appeal No.490 of 2018 (Mad. H.C.)
- Vijaylakshmi & Anr. v. State, Crl. O.P (MD) No. 3775 of 2012 (Mad. H.C.)
- Rukmini S., Young love often reported as rape in our 'cruel society',
The Hindu (JULY 31, 2014 01:29 IST), https://www.thehindu.com/news/national/stories-behind-sexual-assault-rulings-shine-light-on-reality-of-rape/article6265285.ece.
- Centre for Child and the Law (CCL), National Law School of India
University (NLSIU), Implementation of the POCSO Act, 2012 by Special Courts:
Challenges and Issues, National Law School of India University (February
- State v. Akhilesh Harichandra Mishra, Spl. C. No. 165 of 2015 (India).
- Teddy Bear Clinic for Abused Children v. Minister of Justice and
Constitutional Development, Case CCT 12/13  ZACC 35 (Constitutional
Court of South Africa).