New Delhi: The Bombay High Court has said that criminalizing consensual relationships in adolescence is putting a huge burden on the Indian judicial system and does not take into account the social realities. This becomes the latest judge to join a long list of judges and courts who are questioning the current age of consent in India. sexual relations.
Laws such as the Indian Penal Code and the Strict Protection of Children from Sexual Offenses (POCSO) Act, 2012 do not recognize the consent of a minor, even in consensual sex with a woman below 18 years of age is also a crime.
In its July 10 judgment acquitting a man convicted of having sex with a 17-and-a-half-year-old girl, the Bombay High Court held that the age of consent of 18 years is applicable to “consensual relations in adolescence/adolescence”. is to be made a crime.” ,
In the present case – which is of 2016 – a person named Ashiq Ramzan Ansari was 25 years old at the time of the alleged offence. Ansari was eventually booked for rape under sections 376 and POCSO sections and sentenced to 10 years in prison in February 2019.
Justice Bharti Dangre said, “Criminalization of romantic relationships has increased the burden on the criminal justice system by wasting valuable time of the judiciary, the police and the child protection system.” He said a “major proportion” of POCSO cases coming up before the court are related to romantic relationships. ,
The court said, in such a scenario, the victim eventually turns hostile, resulting in the acquittal of the accused.
“The POCSO Act cannot curb the natural feelings towards the opposite sex, especially at that age which is responsible for biological and psychological changes,” the court said. In such a situation, it said, punishing a minor boy who had a relationship with a minor girl, “who was vulnerable to her hormonal and biological changes” would be against the best interest of the child.
Although the court found that the age of consent of 18 was intended to target sexual abuse of children, it “has created an ambiguous field, as it has resulted in the criminalization of definitively consensual adolescent/adolescent relationships”.
However, the court also said that it is for the Parliament to look into the issue.
Setting aside Ansari’s conviction “in view of the clear case of consensual sex”, Justice Dangre said that from the girl’s conduct it could be inferred that she was “capable of understanding the consequences of her act”.
This development assumes significance in view of the increasing number of courts recognizing consensual underage sex,
Last week, the Madras High Court also announced its intention to quash criminal cases brought against minor boys accused of having consensual relationships with minor girls. In that case, the court asked the Tamil Nadu police to find out how many such cases were pending before trial courts or juvenile justice boards in the state.
Courts have also raised concerns How difficult it was in the past to apply POCSO to consensual relationships involving minors as well as local customs allowing child marriages.
Read also: Stuffed toys to clean the walls: Why POCSO loophole hurts child incest victims the most
kidnapping and rape case
In the present case, the Bombay High Court was hearing an appeal filed by Ansari against the conviction and sentence of the trial court. The case dates back to February 1, 2016, when the girl’s brother lodged a complaint of kidnapping after she went missing for two days. As per the High Court order, the girl was living with Ansari in Gujarat’s Anand on March 18, 2016.
As the girl was found to be a minor, Ansari was booked under sections of POCSO along with kidnapping and rape, as per the order of the High Court.
The High Court judgment also noted that when the girl was sent to Mumbai for medical examination, she told the medical professionals about her “history of love affair” with Ansari, which it turned out to be part of. She left because her family was against the relationship. ,
The girl also told the court that she had a relationship with Ansari for one and a half to two years. She was found pregnant, but had an abortion on 22 March 2016.
‘Punishment approach is affecting teens’ sexuality’
In its judgement, the Bombay HC pointed out that sexual autonomy “encompasses both, the right to engage in desired sexual activity and the right to be protected from unwanted sexual aggression”.
It added, “Only when both aspects of adolescent rights are recognised, can human sexual dignity be fully respected.”
It then went on to say that although all children are entitled to protection from sexual violence, “such protection should also enable young people to expand their limits, exercise and take necessary risks, although they may be exposed to inappropriate reactions, harms And shouldn’t be put in danger.” ,
In her judgement, Justice Bharati Dangre noted that the “punitive approach towards adolescents’ sexuality has impacted their lives on barrier-free access to sexual and reproductive health services”.
Keeping in mind the age of consent of 18 years, the court said: “As a result of this scenario, even if a boy of 20 years has sex with a girl of 17 years and 364 days, he will be found guilty of doing so.” The girl categorically admitted that she was equally involved in the sexual act, yet she was raped.
In consensual relationships between juveniles, “who are attracted to the opposite sex and have sex on impulse, only one has to face the consequences of being charged with the offense of rape, although the other is also involved.” was” (sic) in the same act”, the ruling said.
The court also noted similar concerns already raised by other High Courts.
Referring to the young age of consent, Justice Dangre said, “The issue of physical attraction or infatuation always comes to the fore when a teenager enters into sexual relations and it is high time that our country also takes note of the happenings around the world.” be aware of.” Other Countries.
‘Bond of love’
Although the trial court convicted Ansari for rape and under provisions of the POCSO Act, it acquitted him of the kidnapping charges, noting that the girl had accompanied him of her own free will.
The court had to decide whether Ansari had raped the girl.
Since the law does not recognize the consent of a minor, the court found her guilty of rape.
“Now, as per the definition of rape given in Section 375 of the IPC, sexual intercourse with or without the consent of the victim amounts to rape if the victim is a minor. Here, as discussed earlier, it is a case of consensual sex. However, since the victim was a minor at that time, her consent was immaterial and hence, it amounts to rape,” the trial court said in its judgement.
In its order, the Bombay HC took note of two letters written by the girl to Mumbai’s Dongri police station. One of these letters was written in January 2016, while the other was undated.
In these letters, the girl wrote that she is a Muslim, has attained majority and is eligible for marriage. She also wrote that she had married Ansari in September 2014 of her own free will, that she loved him and wanted to be with him.
The Bombay HC did not go into the question whether the couple was married.
But it added that on reading the statement of the girl before the trial court, “one thing that immediately comes to mind is her bond of love with the accused which was deep-rooted for about two years”.
“The girl was clear in her statement and about her expectations from her life, was fully aware and prepared to face the consequences of her relationship with the accused person aged 25 years”, it added. The question was raised whether Ansari has been convicted? was “justified”.
(Edited by Uttara Ramaswamy)
Read also: How are courts ‘creative interpretation’ of the gray zone between minors and consent in POCSO cases?