New Delhi: Criminalising consensual teenage relationships is putting a great burden on the Indian judicial system and doesn’t take into account social realities, the Bombay High Court has said — becoming the latest to join a long list of judges and courts questioning India’s current age of consent for sexual relationships.
The Indian Penal Code and laws like the stringent Protection of Children from Sexual Offences (POCSO) Act, 2012, do not recognise the consent of an underage woman, making even a consensual sexual relationship with one below 18 years an offence.
In its 10 July ruling acquitting a man who was convicted for having a sexual relationship with a 17-and-a-half-year old, the Bombay High Court observed that the age of consent at 18 years is “criminalising consensual adolescence/teenage relationships”.
In the current case — which dates back to 2016 — the man, Ashik Ramjan Ansari, was 25 at the time of the alleged offence. Ansari was eventually booked for rape under Section 376 and under sections of POCSO and was sentenced to 10 years in jail in February 2019.
“The criminalisation of romantic relationships has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system,” Justice Bharati Dangre said, adding that a “huge chunk” of POCSO cases coming before the court involved romantic relationships.
In such a scenario, the victim ultimately turns hostile, resulting in the acquittal of the accused, the court said.
“The POCSO Act cannot stop the natural feelings towards the opposite sex, particularly in the age which account for biological and psychological changes,” the court said. In such a situation, it said, punishing a minor boy who entered into a relationship with a minor girl, “who were in the grip of their hormones and biological changes” would be against the best interest of the child.
Although the court observed that the age of consent of 18 years was intended to target the sexual exploitation of children, it has “created a gray area, as it has definitely resulted in criminalising consensual adolescence/teenage relationship”.
The court, however, also said that it was for Parliament to look into this issue.
Setting aside Ansari’s conviction “in wake of the clear case of consensual sex”, Justice Dangre said it could be inferred from the girl’s conduct that she was “capable of understanding the consequences of her act”.
The development becomes significant in the wake of an increasing number of courts recognising consensual underage sexual relationships.
Last week, the Madras High Court also announced its intention to quash criminal cases brought against minor boys accused of engaging in consensual relationships with minor girls. In that case, the court asked Tamil Nadu Police to find out how many such cases are pending before lower courts in the state or before Juvenile Justice Boards.
Courts have also raised concerns in the past over how difficult it was to apply POCSO to consensual relationships involving minors as well as those involving local customs that permit child marriages.
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The kidnapping and rape case
In the current case, the Bombay High Court was hearing an appeal filed by Ansari against the trial court’s conviction and sentence. The case dates back to 1 February 2016, when the girl’s brother had registered a kidnapping complaint after she had been missing for two days. According to the high court order, the girl was found to be living with Ansari in Anand, Gujarat, on 18 March 2016.
When the girl was found to be a minor, Ansari was booked for kidnapping and rape, as well as under sections of POCSO, according to the high court order.
The high court verdict also notes that when the girl was sent for a medical examination in Mumbai, she told the medical professionals about a “history of love relationship” with Ansari, with whom she is learnt to have eloped because her family was against the relationship.
The girl also told the court that she had been having a relationship with Ansari for 1.5 to 2 years. She was found to be pregnant, but she terminated it on 22 March 2016.
‘Penal approach impacting adolescents’ sexuality’
In its ruling, the Bombay HC explained that 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 adolescents’ rights are recognised, human sexual dignity can be considered to be fully respected,” it observed.
It then said that while all children are entitled to be protected from sexual violence, “such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk-taking, though not exposing them to inappropriate response, harm and danger”.
In her ruling, Justice Bharati Dangre said that “penal approach towards adolescents’ sexuality has impacted their life to a barrier-free access to sexual and reproductive health services”.
Taking note of the age of consent of 18 years, the court observed: “As a result of this scenario, even if a boy aged 20 indulges (sic) 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”.
In consensual relationships between teenagers, “who fall for attraction of the opposite sex and enter into a sexual relationship, out of impulsiveness, only one has to take the consequences, on being charged for committing an offence of rape, though the other had also indulged into (sic) the same act”, the ruling said.
The court also noted similar concerns already raised by other high courts.
“A case of physical attraction or infatuation always comes forth, when a teenager enters into a sexual relationship and it is high time that our country is also cognisant of happenings around the world,” Justice Dangre said, referring to the lower ages of consent in other countries.
‘Bond of love’
Although the trial court had convicted Ansari for rape and under provisions of the POCSO Act, it acquitted him of kidnapping charges while noting that the girl had accompanied him of her own volition.
The question left for the court to decide was whether Ansari had raped the girl.
Since the law does not recognise a minor’s consent, the court found him guilty of rape.
“Now, as per definition of rape as given in Section 375 of IPC, if the prosecutrix is minor then the sexual relations with or without her consent amounts to rape. Here, as discussed earlier, it is the case of consensual sex. However, as that time prosecutrix was minor, her consent was immaterial and therefore, it amounts to rape,” the trial court said in its ruling.
In its order, the Bombay HC takes note of two letters written by the girl to Mumbai’s Dongri Police Station. One of the letters was written in January 2016, while the other was undated.
In these letters, the girl wrote that she was Muslim, had attained puberty and was eligible to marry. She also wrote that she had married Ansari of her own free will in September 2014, was in love with him, and wanted to live with him.
The Bombay HC did not get into the question of whether the couple was married.
But it said that on reading the girl’s statement before the trial court, “one thing which immediately strikes is, a bond of love shared by her with the accused and which was deeply-rooted for almost two years”.
The girl “was clear in her version and about her expectation from her own life, fully aware and ready for taking the consequences flowing from the relationship she was maintaining with the accused, a man aged 25 years”, it said, questioning whether Ansari’s conviction was “justiciable”.
(Edited by Uttara Ramaswamy)
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