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High time India considers reducing age of consent for sex: HC

Jul 14, 2023 12:51 AM IST

The Bombay High Court in India has urged the country to consider reducing the age of consent for sex, highlighting that many other countries have set their age of consent between 14 and 16 years. The court argued that the current age of 18 is one of the highest globally and that punishing minors for consensual relationships would not be in their best interest. The court made the comments while hearing an appeal by a man who was sentenced to 10 years in prison for maintaining a consensual relationship with a minor girl.

MUMBAI: It is high time India considered reducing its age of consent for sex, the Bombay High Court has said.

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The court pointed out that after the enactment of Protection of Children from Sexual Offences, (POCSO) Act , scores of adolescents are being prosecuted and jailed for maintaining consensual relationships with minor girls.

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Majority of the countries have set their age of consent between 14 and 16 years and India, at 18 years, should take cognizance of happenings around the world, said the court.

The POCSO Act cannot stop natural feelings towards the opposite sex, particularly among adolescents on account of the biological and psychological changes they go through, said single judge bench of justice Bharati Dangre on Monday.

Therefore, punishing a minor boy for entering a relationship with a minor girl would be against the best interest of the child, added justice Dangre.

Justice Dangre highlighted the fact that over time, the age of consent has gone up through various statutes in India and was maintained at 16 years from 1940 till 2012, when the POCSO Act raised it to 18 years.

This is probably one of the highest age of consent globally, as majority of countries have set their age of consent in the range of 14 to 16 years, said justice Dangre.

“Children in the age group of 14 are considered capable of giving consent to sex in countries such as Germany, Italy, Portugal, Hungary etc.,” said the court.

In countries such as England, Wales, and even in Bangladesh and Sri Lanka, the age of consent is 16 years. Japan has set the age of consent at 13 years, said the court.

“In comparison, as far as India is concerned, the age of marriage for male and female is fixed at 21 and 18 years (respectively) as per the Child Marriage Prohibition Act, 2006,” said justice Dangre..

“The definition of the term ‘child’ varies from statute to statute and as per the POCSO Act, a person below 18 years of age is considered a child and it criminalises all sexual activities with them, even if the act was committed with consent,” added justice Dangre.

“The age of consent must be distinguished from the age of marriage, as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect,” said justice Dangre.

The single judge bench was hearing into an appeal filed by a 32-year-old tailor from Antop Hill in Wadala, who was sentenced by a special POCSO court on February 21, 2019, to 10 years of imprisonment for eloping with and maintaining a consensual relationship with a minor girl.

The tailor was around 25 years old and the girl around 17-and-a-half years of age when they eloped. The two later married and the girl reiterated before the trial court that their relationship was consensual. However, the POCSO court convicted the tailor and sentenced him as the girl was technically a minor.

Justice Dangre said a case of physical attraction or infatuation always comes forth when a teenager enters a sexual relationship, and it is necessary that our country looks and observes all that is happening around the world.

However, in this whole scenario, if a young boy is castigated as a rapist for being guilty of having sex with a minor girl, merely because she is below 18, but an equal participant in the act, he would suffer a severe dent which he will have to carry lifelong, added justice Dangre.

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