Can a 16-year-old girl be considered "mentally and physically fit" to give consent for sex? A judge of the Lucknow bench of the Allahabad High Court has questioned the provisions of an 1860 law that permits this while terming it as "outdated and invalid".
Justice V D Chaturvedi has shot off notices to both the union and the state governments for taking a fresh look at the law, which he says was designed to suit the then British rulers.
The issue came up before the court on Friday in the case of an appeal by a man convicted of raping a 17-year-old girl.
Convicted by a trial court to seven years' rigorous imprisonment, the rapist sought reprieve on the plea that the girl was above the age of 16 and was therefore, under law, entitled to give her consent for having sex with him.
Rejecting the plea, Justice Chaturvedi pointed out in his verdict that the Indian Penal Code (IPC) was drafted way back in 1860 and many of its provisions were tailored to suit the interest of the foreign rulers.
The court has even gone to the extent of observing that the law relating to consent for sex was apparently designed keeping in mind that most of the British officers had to live here without their families so they were bound to indulge in extra-marital sex with women of all ages.
The judge has also drawn comparison with other laws of the land which do not give several rights to persons of the age of 18 or even 21.
"It is an irony of law that on one hand a person below 16 is treated as a child or a minor and is considered incapable of taking care of his or her own person, is not considered fit for marriage - but on the other hand a female child of 16 years is considered mentally and physically fit to give consent to any person to have sexual intercourse with her (under section 375 IPC) and a male child if 16 is deemed mentally matured to give consent to go with another (under section 361 IPC)," the judge observed.
The case is to come up for hearing on Aug 31.