The age of consent for adolescents to engage in consensual sexual relationships has been lowered in various nations, according to the Bombay High Court, and it is about time our nation and Parliament take note of these developments.
A single bench of Justice Bharati Dangre in an order passed on July 10 expressed concern over the increasing number of criminal cases under provisions of the Protection of Children from Sexual Offences (POCSO) Act, where the accused are castigated even when the victims, being adolescents, maintain they were in a consensual relationship.
Sexual autonomy encompasses both the right to engage in wanted sexual activity and the right to be protected from unwanted sexual aggression. Only when both aspects of adolescent's rights are recognised, human sexual dignity can be considered to be fully respected, it said.
The court made the remarks in an appeal filed by a 25-year-old man challenging a February 2019 order of a special court convicting him for raping a 17-year-old girl. The man and the girl had claimed they were in a consensual relationship. The girl in her submission before the special court claimed that under the Muslim law, she was considered a major and hence she had Nikah with the accused man.
The age of consent necessarily must be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage, and not only the society but the judicial system must take note of this important aspect, the high court said.
Over the time, the age of consent has been increased by various statutes in India. It was maintained at 16 from 1940 till 2012, when the POCSO Act raised the age of consent to 18 years, probably one of the highest ages globally, as majority of the countries have set their age of consent in the range of 14 to 16 years, the HC said.
It said in countries like Germany, Italy, Portugal and Hungary, children in the age group of 14 are considered capable of giving consent to sex. In London and Wales, the age of consent is 16 and in Japan it is 13, the court said. As a result of this scenario, even if a boy aged 20 indulges with a girl aged 17 years and 364 days, he would be found guilty of committing rape upon her despite the girl clearly admitting that she was equally involved in the act of sex. The minor is not considered to be capable enough to give valid consent in the eyes of law for entering into consensual sex, the HC said.