Law Regarding Consensual Intercourse with Minors in India

Reading time: 6-8 minutes.

Law is a mere reflection of the interest of its society. In a modern society, any change with time is certain. With ever evolving contemporary ideas and perceptions from different groups of people, it is common for the law making bodies to face hardship to take quick decision when it comes to conflict of interests.

Such is the condition of every country, struggling to answer the irresolvable question, ‘At which age is it right for a minor to consent to indulge oneself in a sexual intercourse and is it ethical to allow a minor to have a consensual intercourse?’.

The Court is under immense pressure while dealing with the current issue, because every decision made regarding the same reflects the tradition, culture and history of the country.

The word “consent”, is the manifestation one’s actual will to do any act. “Will”, on the other hand is the mere desire to do an act. Therefore, any person who engages in a sexual intercourse with another person with will and no consent becomes liable and held guilty for committing sexual offence.

Until 2017, the IPC did not recognize marital rape, when the SC brought down the exception to Sec. 375, vesting men the right to consummate marriages with their wives under the age of 15-18, in its judgment of the case Independent Thought v. Union of India.

This law curbs the right of consent to all women who are legally married i.e. wife, who is below the age of 18 is restricted from a sexual relation and after attaining majority she has no power to reject due to presumption of matrimonial consent.

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What is the concept of ‘statutory rape’ among minors?

Any form of sexual relationship between two minors, irrespective of their consent is known as statutory rape, which is unlawful because either parties of such act is below the legal age to get involved sexually, further making them incapable of giving their consent to the said act. Hence, the consent is irrelevant.

Statutory rape falls under Section 375 and 376 of Indian Penal Code. The Convention of Elimination of Discrimination against Women (CEDAW) supports the view of withdrawing the legal effect on child marriage. Due to this, after 1980, India treats child marriage as voidable.

The other 3 major reforms in the sexual intercourse laws of India:

1. Protection of Children from Sexual Offences Act, 2012

  • CHAPTER II of the Act:

In order to protect the children from any form of sexual assault, sexual harassment to which they are incapable of giving their consent, such as

  1. Penetrative Sexual Assault
  2. Aggravated Penetrative Sexual Assault
  3. Sexual Assault
  4. Aggravated Sexual Assault
  5. Sexual Harassment
  6. Chapter III of the Act

Under this chapter using child for pornographic purposes and about the respective punishments are defined.

  • Section 2(d) of the POCSO Act defines a ‘child’ as to any person below the age of 18. This act provides justice without any gender discrimination as every person under the age of 18 who are incompetent to give their consent. Hence, any person, involved with any sexual act covered under this act and the victim involved is under the age of 18, the offence is punishable as it is considered to be violation of this Act.
  • Section 34(1) states on offence committed by the offender, who is a child himself, shall be tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Sec. 19 of the Act encourages and make it obligatory to report such crime to the Special Juvenile Police Unit or the local police enshrined in POCSO, failure of which is punishable with imprisonment of either description which may extend to six months or with fine or with both.

2. Criminal Law (Amendment) Act, 2013: Sexual Offences

a) Protection of Children from Sexual Offences Act, 2012.

  • The age of a “child”, was reduced from 18 years to 16 years under Section 2(d).
  • Punishment for rape under the act was increased from 7 years imprisonment to 10 years imprisonment and fine.
  • Section 42: An act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509, 376AB, 376DA, and 376DB  of IPC, where the offender shall be liable to punishment under this Act or under the Indian Penal Code.

b) Code of Criminal Procedure (CrPC), 1973

  • Section 161: An alleged woman against whom, any such offence has been committed shall be recorded, by a woman police officer or any woman officer under.
  • Section 273: states that while recording the evidence of a victim woman below the age of 18, the court will ensure that such woman is not confronted by the accused.

2. Criminal Law (Amendment) Ordinance, 2018

A law initiated primarily to amend certain laws related to rape of minors.

  1. Indian Penal Code (IPC), 1860
  2. Enhanced the punishment for rape under IPC, where the minimum imprisonment has been increased from seven years to ten years rigorous imprisonment.
  3. Then
Age GroupOffencePunishment
Below 12 yearsRapeRigorous imprisonment from 20 years extendable to life imprisonment, and fine
Gang RapeLife imprisonment and fine.
Below 16 yearsRapeMinimum rigorous imprisonment of 20 years that can be extendable to life imprisonment and fine.
Gang RapeLife imprisonment, along with fine.

b) Code of Criminal Procedure (CrPC), 1973

  • The maximum time limit to complete investigation was decreased from three to two months.
  • An appeal in any rape case has to necessarily be disposed off within six months.
  • No anticipatory bail to be granted to the alleged accused of sexual assault against minor girls below the age of 12 and 16.

c) Indian Evidence Act, 1872

To determine the consent of the victim, his past sexual experiences are disregarded. This provision was extended to include girls below 12 and 16 years of age as victims.

LAWS GOVERINIG OTHER COUNTRIES AROUNG THE GLOBE:

COUNTRYLAWAGE OF CONSENT
JAPANThe Penal Code of Japan.Juvenile Obscene Act.The Civil Codes.13 years     15-18   20 years
GERMANYPenal CodeCriminal Code14 years14 – 16 years
MEXICO 16 – 18 years
FRANCEPenal Code15 years
RUSSIACriminal Code16 years

What is the reasoning for criminalizing consensual intercourse?

The British Jurist of the 18th century, Sir Matthew Hale defined rape as, “An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

After sheer struggle, some feminists have favored these laws, as it is the yardstick to combat the sexual abuse of young girls. A statutory rape charged, would not require proof of force or coercion, therefore young and vulnerable girls are, guarded against such crimes committed by the adults and actual rapists via deterrence and real possibility of retribution.

It is legally required to have a right and a set age for the same, without any moral obligation. Specifically, in a country where the age of consent for a married woman is lower than an unmarried woman and where marriage is taken as a license to rape, this must be reformed.

The law relating to Statutory rape must be stringent as this section of society seeks to protect minors who are mentally- incapacitated as well. As stated earlier, minors are incapable to understand the dire consequences of their actions and desires, it is the duty of law to protect the innocence of the youth.

In conclusion

Maybe, the laws of consent must be flexible and realistic just to ensure and minimize the victim rate. Similarly one must be, appreciated for attaining sexual maturity quicker, enabling them to make choices about their own bodies. 

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To give up one’s “virtue” to a person who is unworthy and most importantly unwilling to pay with his hand in marriage is gimmick and speaks about the poor judgment of the youths of today.

The forbidden fruit is always more lucrative and severe restrictions fuels curiosity. By criminalizing consensual sexual activity, we deny them access to protective and safe medical procedures. This becomes one of the reasons for the increase in abortions.

A law fixing the age of consent must be, understood in a manner that protects our children against abuse as well as prosecution. These laws should serve an educative purpose and provide reformative punishments.


Author: R. Danyuktaa Shruti from VIT University, Chennai.

Editor: Tamanna Gupta from RGNUL, Patiala


Analysis: The Juvenile Justice (Care and Protection of Children) Act, 2015

Reading time: 6-8 minutes.

The Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval on 22 December, 2015, replacing the pre-existing Juvenile Justice (Care and Protection of Children) Act, 2000. There was a great need to have an efficient juvenile justice system to control the growing crime rate in India.

The treatment of children ought to be different from that of adults. They should be given more room for improvement and reformation. Therefore, arises the need for a separate justice system for children in conflict with the law. Many young offenders are also victims, with complex backgrounds.

These children are distressed because, more often than not, they are being abused, exploited or neglected, or they do not have parents to take care of them, or are mentally ill. Due to their sensitive needs and volatility, they are also likely to be inducted into drug abuse or trafficking.

It has been recognised that children, when dependent on the same justice mechanism as adults may find themselves further victimised by the system itself, and therefore, arises the need for a separate legal justice system.

Salient features of the Act

The existing law for juvenile justice in India is the Juvenile Justice (Care and Protection of Children) Act, 2015. It was enacted to adopt a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this law.

  • Definition of child

Firstly, the act defines a child as a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories, namely ‘child in conflict with law’, and ‘child in need of care and protection’.

  • Classification of offences

The Act has also made a clear distinction of the kinds of offences, categorising them as petty, serious and heinous. It stated that in case of a heinous offences alleged to have been committed by a child who has completed or is above the age of sixteen years, a preliminary assessment with regard to his mental and physical capacity to commit such offence will be conducted, and that the child may be tried as an adult.

It was by this Act that it was recognised that the rights of juvenile accused are equally important as those of victims, and therefore, special provisions were proposed to tackle heinous offences committed by individuals in the 16-18 age group. This provision of the Act has faced criticism, which will be dealt with later on.

  • 2015 Amendment

The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on 12 August, 2014 by the Ministry of Women and Child Development. This Bill aimed at making a more robust, effective and responsive legislative framework for children in need of care and protection as well as children in conflict with law.

In the Act of 2015, the definition of a ‘child in need of care and protection’ had been expanded, such that it includes a child who is:

  • Found working in contravention of labour laws, or
  • At imminent risk of marriage before attaining the lawful age, or
  • Who resides with such a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any other law, or
  • Whose parents or guardians are unfit to take care of him/her.

Also, the definition of ‘adoption’ had been added, and the rights of an adopted child have been recognised in the Act.

  • Introduction of children’s court

A very important provision of ‘children’s court’ had been made, which was absent in the 2000 statute. Under this, a court is established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such courts have not been designated, the Court of Sessions is having jurisdiction to try offences under the Act.

Critical analysis

The new Act of Juvenile Justice (Care and Protection of Children) Act, 2015 has faced wide criticism. The criticisms are as follows:

  • Treatment of juveniles as adults in some cases

One of the major of these criticisms is that under this Act, juveniles can be tried as an adult if they committed the wrongful act as an adult. The UN Convention on the Rights of the Child requires every individual below the age of 18 years to be treated as a ‘child’. Therefore, the above-mentioned provision in the Act of 2015 is seen to be in contravention of the Convention. Some also say that it destroys the rehabilitative foundation of the existing juvenile justice system in India.

  • Inherently discriminatory nature of the Act

Another criticism is that this new law discriminates against children on the basis of their age and nature of the offence. It is also not premised on the understanding that children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their amenability to rehabilitative interventions.

  • Scope for misuse and arbitrariness

It is also criticised that the method of identifying whether the child between the age of 16 and 18 years committed the crime as a child or as an adult, is very subjective, and may be very inaccurate at times.

  • Children’s Courts being

It is also said that the children’s courts, that were essentially developed to try offences against children, are now trying offences by children under the new law, which destroys the essence of these courts.

Also, upon turning 21 years of age, the fate of the person will lie in the hands of the Children’s Court. As per Clause 21 of the Act, the Court will decide whether a person has “undergone reformative changes” or “can be a contributing member of the society”. Such an inquiry is highly subjective and prone to arbitrariness that falls foul of Article 14 of the Indian Constitution.

Similar laws in other countries

The system of juvenile justice may be different in different countries. The stage of development of the understanding, discourse and even the law in the area of juvenile justice vary from one region to another, depending upon the history and culture of its citizens, their approach to human rights, their legal and technical capacities and their government.

  • Juvenile justice system in the UK

In the UK, as juvenile crime became a growing concern, many legislatures adopted stricter laws, and Children and Young Persons Act of 1993 was implemented. Section 16 of the Act provides that a person under the age of 10 should not be arrested.

Between the ages of 10- 14 years a child is presumed not to know the difference between right and wrong and therefore incapable of committing a crime due to lack of mens rea.

It also provides that a child may be only kept in police custody for 72 hours and as soon as possible the constable concerned should arrange for the investigation to take place. A juvenile who has been arrested with a prior warrant should not be released according to Schedule 6, para 19(b) of the Police and Criminal Evidence Act.

A juvenile must not be detained in a police cell unless no other accommodation is available and the custody officer does not think it is practical to supervise him if he is not placed in a cell.

  • Juvenile justice system in the US

The 19th century US witnessed a drastic change as far as treatment of Juveniles was concerned. Big cities like New York and Chicago opened New York House of Refuge in 1825 and Chicago Reform School in the year 1855 respectively for juveniles to separate them from adult hardened criminals.

The first juvenile court in the US came into existence in the year 1899 in Illinois. After this within a span of 25 years most states had established juvenile court system.

The age of majority varies in separate States in the US. There is unanimity in almost all US States on the point of trying juveniles at par with adults on juvenile attaining the age of fourteen years in certain circumstances barring states like Vermont, Indiana, South Dakota where a child of even ten years can be tried as an adult.  In heinous crimes even life imprisonment can be granted to child aged twelve years.

Conclusion

The rising rates of juvenile delinquency and crime committed by juveniles is a pertinent issue today and due focus must be provided. Though the Government has passed statues dealing with this issue, these statutes have shown to do nothing to neither reform juveniles, nor deter them from crime.

It can be concluded that a separate legal system for juveniles is necessary for better handling of cases related to juvenile delinquency. The reformist aspect of juvenile criminal jurisprudence must be focused upon, over its deterrent aspect. It can be seen that the 2015 Act, albeit its criticisms, achieves the balance between the penal and the protective, such that the minor is sufficiently rehabilitated and dissuaded from crime at the same time.

Author: Deepali Sherawat from NMIMS, Mumbai.

Editor: Anna Jose Kallivayalil from NLU, Delhi.