The centre's proposal for raising the age of consent for sex from 16 to 18 years would be "regressive" and "draconian" as it would remain a penal offence, a Delhi court has said.
The court opined that keeping in view the change in social attitude and sensibilities, exceptions should be made while deciding the age of consent for sex as in rural parts of the country marriages are solemnised at an early age.
Additional sessions judge Kamini Lau made the remarks, while referring to the conditions in western countries where there are adequate safeguards for protection against sexual offences.
"No doubt, there is an urgent need to protect children from sexual offences, harassment and pornography but at the same time it is necessary to ensure a close-in-age reprieve and a lenient view in case of close-in-relationship as adopted by various western countries where there is no exploitative coercive situation including impersonation, fraud, fear, threat and false promises.
"In the absence of such a safeguard the proposed increase in the age of consent would become regressive and draconian as it tends to criminalise teenage/adolescent sex. The need is to correct this behaviour and not punish," the judge said.
The court's observations came while acquitting a youth of the charges of kidnapping and raping a 17-and-a-half-year-old girl, to whom he got married and is now having a child with.
The court referred to the proposed special 2011 bill for protection of children from sexual offences, which provides that that no person below the age of 18 will have the legal capability to give consent for any sexual activity and the bill makes sex under the age of 18, even if consensual, to be deemed as statutory rape.
The court acquitted Ghaziabad resident of kidnapping and raping a Delhi-based girl after considering that they were in love and she had eloped as their families were against their relation and married him with her consent.
"Both the girl and the boy being happily married with a young child, any hyper-technical view would be devastating for the young couple. I hold the charges against Ajay do not stand establishes and I acquit him for the same," the ASJ said.
The court said keeping in mind the changes in social attitude and sensibilities, exceptions should be made while deciding the age of consent for sex as in rural parts of the country, the marriages are solemnised at an early age.
"Exceptions and allowances have to be made while considering the age of consent/protection keeping in view the changing social attitudes and social sensibilities and the situation in rural India where early marriage is a norm and acceptable in diverse cultures and religions particularly where the age gap between the youngsters are within the acceptable limits and no exploitative coercive situation is reflected," ASJ Lau said.
Referring to the case in hand, the court noted the girl, at the time of recording her statement before a magistrate told him she had voluntarily gone with Ajay after telling her parents and then married him on November 6, 2011.
The judge said it was clear from the evidence that the case was registered by the girl's brother as the family was against the couple's relationship but later they accepted their marriage and even performed formal ceremonies as per the Hindu rites.
"The girl is happily residing at her matrimonial house along with her husband Ajay and the child," ASJ Lau said.