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Abstract:

                        Romantic relationship and sexual instinct are a universal phenomenon with its developmental significance, especially during adolescence. Adolescent romantic relationship is considered to be a taboo against the dignity and honor of the family, more so when differences in religion, caste, or economic class are involved. Some disgruntled parents file a case to foil a relationship between two adolescents, to control whom their daughters or sons want to marry. In cases under the POCSO Act 2012, decided by special courts, one in every four cases registered and disposed under POCSO was a “romantic case”. A more nuanced approach is the need of the hour. Merely creating awareness among children will not solve the issues arising out of consensual relationships between teenagers. The POCSO Act needs suitable amendments based on the realization that consensual teenage relationships are a “social fact” and criminalizing them is not helping anyone, especially children.

Keyword: POCSO Act 2012, Consensual teenage relationship.

Introduction

The Age of Consent is the minimum age at which a person is considered to be legally able to give consent to engage in sexual activities. Internationally, the Age of Consent ranges from as high as 19-21 in some countries to as low as 11 or 12 in certain underdeveloped nations. Some countries, particularly in the Middle East, require marriage prior to intercourse but do not specify an age of consent. Engaging in sexual activities with an individual who is under the Age of Consent can result in prosecution for rape.^[1] The POCSO Act, 2012, is a landmark law enacted in India on November 14, 2012 to protect the best interest and well-being of the children from all forms of sexual offenses such as sexual assault, sexual harassment, using the child for pornographic purpose, and abatement to commit such offense. Under this act, a comprehensive definition is given to all forms of sexual crimes and exploitation against children below the age of 18 years. As a supreme legislation, this act ensures safeguarding the best interest of the child at every stage of the judicial process through its child-friendly mechanisms in terms of reporting, recording of evidence, investigation, and speedy trial of offenses through designated Special Courts. The section 2(d) of The Protection Of Children From Sexual Offenses Act, (POCSO) 2012 defines "child" as any person below the age of eighteen years; which is also the age of majority according to Section 3 (1) of The Majority act 1875. In India a minor cannot give valid consent, Hence Sexual activities with minor or child even if there was some form of consent will be illegal in accordance of the law. This makes the law very strict and gives sharp teeth for curbing sexual offenses and help protecting Right of child. But on the other hand, this criminalization of sexual activities with and between child or minor regardless of consent and terming them as sexual assault and punishing strictly gives rise to a peculiar scenario where two minor or a minor and a person barely above the age of majority engaging in romantic relationship end up prosecuted under POCSO Act 2012. Many countries have passed so-called "Romeo and Juliet laws" for dealing with this kind of matters, but India does not have such protection. This is misused widely in India by patriarchal society as alternative to honor killing. Hence there is a need to have a conversation in society a well as legislative sphere to rationalize the Act and the definition of child under POCSO Act 2012 in accordance with base reality of India. This article majorly talks about the age of consent in relation with POCSO Act and tries to rally for conversation on such subject.

Historical Background

In the Statute of Westminster 1275 made it an offense to "ravish" a "maiden within age," whether with or without her consent. This was the first recorded age-of-consent law dates from England.^[2] In Indian context, when in 1884, Rukhmabai, a 20-year-old woman was taken to Bombay high court by her husband Bhikaji after she refused to live with him. Having married him at the age of 11 years, never having consummated the marriage and having lived separately for nearly 8 years she refused to move back with him. She was ordered by the court to live with her husband or face a six-month imprisonment. She refused to comply, and the rising costs of the trial forced Bhikaji withdrew the case in July 1888 upon a settlement of 2000 rupees.^[3] This case in a Bombay high court of a child-bride Rukhmabai started discussion of such a law. In 1889, the death of an 11-year-old Bengali girl Phulmoni Dasi after being brutally raped by her 35-year-old husband Hari Mohan Maitee served as a catalyst for its legislation. Hari Mohan Maitee was acquitted on charges of rape but found guilty on causing death inadvertently by a rash and negligent act. It was the death of an eleven-year-old Bengali girl Phulmoni Dasi due to forceful intercourse by her 35-year-old husband in 1889 that drove intervention by the British^[4]

India introduced the Protection of Children from Sexual offenses (POCSO) Act, 2012, which provided for the first time in the country's legislation, a comprehensive and graded definition of sexual assault against children. The Act defines a range of penetrative and non-penetrative sexual assaults and stipulates penal provisions for the same. POCSO has been widely welcomed for filling the void in legislation against sexual assault experienced by children, including boys and trans-persons under the age of 18. Close on the heels of this legislation, the Indian Penal Code (IPC) Sections 375 (defining rape), 376 (providing punishment for rape) and 354 (providing definitions and penal provisions for sexual harassment) were amended in 2013 against the background of a shocking gang rape in 2012 in New Delhi. The Criminal Law Amendment (CLA) Act, 2013, which includes the rape law amendments, expanded the definition of rape from an offense limited to non-consensual peno-vaginal penetration to a range of penetrative and non-penetrative sexual assaults without consent, including penetration of the vagina, anus, and urethra by the penis, objects or other body parts; penetration of the mouth with the penis and application of the mouth to the vagina, urethra or anus without consent. While the POCSO, 2012 and CLA Act 2013 are distinct criminal laws, they are used in conjunction in the case of all sexual assaults faced by girls under the age of 18 years.^[5]

Age of Consent In Light of Rights of Child and Sexual activities

The legal meaning of consent is an active will in mind of a person to permit the doing of the Act. Determining the willingness to do or not to do an act is very tricky. Because of which the consent, expressed or implied becomes important. By giving consent person is showing intension of doing that particular act as agreed upon. Whereas by not giving consent person is denying to the act put forward. In sensitive matters such as sexual activities, the consent becomes more important. For children below the age of puberty, the cases of sexual assault by an older person becomes quite clear as children of this age group are less likely to understand the incident and give consent. Under section 90 of Indian Penal Code 1860, Consent is No Consent if given by child under twelve years of age. In addition, Explanation 2 of section 375 of Indian Penal Code 1860 also provides explanation that for the purposes of this clause, the expression consent' means the unequivocal voluntary agreement where the person has by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the act referred to in the clause; and 'unequivocal voluntary agreement' means willingness given for specific and be limited to the express act consented to under this clause. It also clarifies that a child, who does not offer actual physical resistance to penetrative sexual assault is not by reason only of that fact, to be regarded as consenting to the sexual activity. This is in line with the Indian jurisprudence on sexual assault, where there is affirmative consent on a plain reading would imply that the person must consent affirmatively to the act and if she does not, the act is sexual assault. Age of consent for sexual activities and Rights of child are interlinked in a manner which is essential as for providing right as well as for protection of child. Principle 2 of United Nations Declaration of The Rights Of The Child 1959 Provides that The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. For giving effect to this principle, to maintain dignity and freedom, the child should have a rational age of consent so as to protect them from prosecution for consensual sexual activities and at the same time protect child from child marriages, non-consensual sexual assaults, sexual harassment, child pornography, prostitution, etc.

The world Health organization estimates that 40 million children Between 0-14 years of age suffer from abuse or neglect and require health or social care. child abuse is violation of child’s dignity. child sexual abuse can also be in a form of use of children for sexual gratification of adults. The standing committee on sexually Abused children (SCOSAC) (1984) has defined child sexual abuse as ‘Any child below the age of consent may be deemed to have been sexually abused when a sexually mature person has by design or by neglect of their usual society specific responsibilities in relation to the child engages or permits the engagement of that child in activity of a sexual nature which is intended to lead to the sexual gratification of the sexually mature person’.

But in case of teenagers who are at the cusp of attaining age of majority and are in there peak puberty are very venerable and can easily be exploited. Romantic relationship and sexual instinct are a universal phenomenon with its developmental significance, especially during adolescence. One of the striking features of this developmental phase is the formation of a romantic relationship. As a developmental pathway, healthy romantic relationship among adolescents plays a vital role in molding their personal ideologies regarding intimate relationship and sexuality, along with having the enduring influence on self-esteem and overall wellbeing with the progress to the later stage of life.^[6]  The protection at this age needs to be strongest as these matters are very complex, delicate and harder to investigate. In such cases the consent becomes important as the nature of the activity can either be of exploitative or consensual. In case of consideration of close in age consent, the circumstances leading to the provision of consent and/or the context of gaining mutual consent should be verified cautiously under dependable grounds, such as checking whether there is an element of force, persuasion, inducement, grooming, manipulation of consent on defensible grounds, etc. Age determination is the backbone of all criminal matters involving children as victim or as children in conflict with law. Age of the victims is crucial to establish the criminal liability of the accused under POCSO Act 2012.

In 2012, the POCSO Act raised the age of consent to 18 years, which had been at 16 years since 1940.  In Sabari Vs. Inspector of Police, the Madras High Court recommended that the age of consent be revised to 16 years. A study carried out by Enfold Proactive Health Trust, Bengaluru, which found that 93.8% of “romantic cases” tried under POCSO ended in acquittal after consuming a median time of 1.4 to 2.3 years from the filing of a First Information Report (FIR) to disposal by courts. These findings were based on an analysis of 1,715 romantic cases under the POCSO Act, registered and decided by special courts in Assam, Maharashtra and West Bengal between 2016-2020. One in every four cases registered and disposed under POCSO was a “romantic case”, that is, where either the “victim” or her family or the special court said that there was a romantic relationship between the victim and the accused. In more evidence of how the law is misused to punish adolescents involved in consensual sex, the study found that 80.2% of such cases were filed by parents or relatives of the girl involved in a consensual sexual relationship. Girls in such cases, however, do not support the prosecution, and in 87.9% of cases they expressly admitted to having a romantic or consensual relationship with the accused. The report released by Enfold Proactive Health Trust recommends legal reforms to the POCSO Act and the Indian Penal Code (IPC) to decriminalize consensual sexual acts involving adolescents above 16 years, while ensuring that those above 16 years and below 18 years continue to be protected against non-consensual acts under the POCSO Act. It also proposes introduction of comprehensive sexuality education to help adolescents make informed decisions, as well as reforms to ensure access to sexual and reproductive health services. With advancement of society, today parents are encouraged ed to teach the child the difference between “the bad touch” and “the good touch”. This helps child as well as the parent to understand the event and also helps in prevention of such incidents. This understanding of the offense develops with the age and can guide them in unfortunate events. Today children above the age of sixteen are very much aware and are capable to understand the meaning and nature of sexual offenses. It is very much necessary to recognize this fact and do the due diligence. The POCSO Act needs suitable amendments based on the realization that consensual teenage relationships are a “social fact” and criminalizing them is not helping anyone, especially children. A more nuanced approach is the need of the hour. Blanket criminalization of such consensual sexual acts involving older adolescents erodes their dignity, liberty, privacy, evolving autonomy, and development potential. Merely creating awareness among children will not solve the issues arising out of consensual relationships between teenagers. There is a need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in consensual and non-exploitative act. If the Age of Consent is to be lowered to sixteen the teenagers will be better equipped to handle the situation. As they can be free from prosecution as a form of opposition for relationships. Which will help to concentrate on real sexual offenses as this will filter out ‘revenge prosecutions and other forms of false prosecutions. It also impacts the delivery of justice as these cases constitute a large burden on our courts and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.  Several High Courts have called for an urgent need for legal reform to deal with “romantic cases” involving adolescents. Also, At the two-day consultation, conducted by the Supreme Court’s Committee on Juvenile Justice and is part of its annual stakeholders’ meet. Chief Justice of India D.Y. Chandrachud appealed to Parliament to have a relook at the issue of age of consent under the Protection of Children from Sexual offenses (POCSO) Act, 2012 as it posed difficulties for judges examining cases of consensual sex involving adolescents. While addressing a national stakeholders’ consultation on the POCSO Act, which completes 10 years, He said “In my time as a judge, I have observed that this category of case poses difficult questions for judges across the spectrum. There is a growing concern surrounding this issue which must be considered by the Legislature,”^[7] Even UNICEF in its ‘Legal minimum ages and the realization of adolescent’s rights’ says that “Laws should avoid criminalizing consensual sexual activity between underage adolescents, taking into consideration the age difference and possible balance of power in determining the validity of consent.”

POCSO Act used as a ‘control mechanism’ by parents

                        Adolescents strive for greater freedom in making their life choices, more so with selecting a romantic partner. But in India, because of the deep-rooted socio-cultural influence, the family plays a vital role in determining the life choices of the adolescents, including the selection of their life partners. Most often, there is a strong resistance from the families to the romantic relationships of adolescents. As a reaction to such resistance, in most of the cases, to secure the relationship, adolescents run away with their romantic partners and end up in the clutches of the legal framework.^[8]  In Asia, and especially in India, in comparison with the western cultural norms, due to the collectivistic living, the sociocultural values practiced by the families influence the romantic ideologies in a large way. Although the concept is evolving, in most of the Indian states, adolescent romantic relationship is considered to be a taboo against the dignity and honor of the family, more so when differences in religion, caste, or economic class are involved.The ultimate decision of selecting a life partner within the goodness of fit pattern of the family network would be vested on the parents or other significant members in the family. Till then, strict parental supervision would be involved in any matters related to the romantic relationship.^[9]

Many a time, disgruntled parents file a case to foil a relationship between two adolescents. In 2019, a study, “Why Girls Run Away to Marry-Adolescent Realities and Socio-Legal Responses in India”, published by Partners for Law in Development, made a case for the age of consent to be lower than the age of marriage to decriminalize sex among older adolescents to protect them from the misuse of law, sometimes by parents who want to control whom their daughters or sons want to marry. The study noted that in many cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case with the police, who then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006. Once the sexual act is confirmed, the POCSO Act is slapped on the boy, who may sometimes be a minor, or barely of legal age for marriage, and the consequences of being prosecuted for penetrative sexual assault are life-altering, as they are meant to be. The child marriage restraint Act, 1929 was enacted with a view to restraining solemnization of child marriages. The act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male & female for the purpose of marriage. The Act though restrains solemnization of child marriage, yet it does not declare them to be void Or invalid. The prohibition of child marriage Act, 2006 will enhance the health or children and the status of women. If a girl conceives in such delicate age, its negatively affects the physical and mental health. Hence here too it becomes important to save Children from unwanted and non-consensual sexual activities. The Madras High Court had said that the POCSO Act is not intended to penalize adolescents or teenagers in romantic relationships. While quashing the criminal proceedings against the accused in this case, the court recognized that a law to protect and render justice to victims and survivors of child abuse can also be misused. The court noted that a large number of cases filed under the POCSO Act seemed to be arising out of complaints registered by the families of adolescents involved in romantic relationships, which was never the objective of the law.^[10] In its recommendations, National Commission for Protection of Child Rights (NCPCR) supported the “close in age” exemption and recommended for such considerations of (a) a consensual non-penetrative sexual act between two children above the age of 12 years sharing same age or two years of age gap difference and (b) consensual penetrative sexual acts between children above 14 years who are of the same age or sharing three years of age gap. However, even in the recent amendment done in 2019 to the act, this recommendation was not considered.

Conclusion

Exploring sexual aspects and engaging in sexual acts with a romantic partner are normal processes of development among adolescents. However, in India, the whole aspect of the adolescent romantic relationship is coloured by the complex interplay of sociocultural phenomena. Even from the legal point of view as given under the POCSO Act, 2012, the matter of consent remains as a tug of war between the age-appropriate developmental needs and legal obligation for the children in India. Unfortunately, amidst this debate, the real cases of child sexual abuse are getting overshadowed be clouded. There is an urgent need to address this issue, for protecting the best interest of the children from all forms of sexual exploitation and promoting their healthy development as sworn by the act.^[11] Legislative reforms are necessary for the protection of rights of children and safeguarding from exploitation.