Minor’s Consent for Sexual Relations Not Legally Valid: Bombay HC


Feb 9, 2022


Image Credits: Mumbai HC

The Nagpur bench of the Bombay High Court recently reiterated that the consent of a minor for sexual intercourse is unacceptable for any legal application. The means of determining consent — whether issued by threat or willingly offered — is redundant when dealing with cases under the Protection of Children from Sexual Offences (POCSO) Act.

The bench, comprising Justices V.M. Deshpande and Anuja Prabhudessai, was ruling on the bail plea of a 23-year-old man accused of threatening and raping a minor girl, who accused him of kidnapping and sexual exploitation. The accused said the survivor had “willingly” been in a relationship with him and spent 45 days at his residence in Kaushambi, Uttar Pradesh, Bar and Bench reported.

However, the court dismissed the aspect of consent, arguing a minor’s consent is of no value. The survivor’s statement showed the appellant had “extended threat to her to kill her younger brother aged about 3½ years, which was precisely the reason for the victim to accompany the appellant,” the order noted.

Adding that “the consent obtained by giving threat and/or even simple consent by a minor has no value in the eye of law.”

In this case, the survivor’s testimony coupled with medical opinion was used to prove rape charges against the accused. The bench upheld his conviction under the Indian Penal Code, the POSCO Act, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for raping a minor girl.

The idea of a minor’s consent is a deeply contested territory. Last year, another bench of the Bombay High Court called it a “legal grey area.”

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Moreover, the notion of consent especially between two minors (different from the present case) is deemed irrelevant also because either party is below the legal age to get sexually involved, which makes them “incapable” of giving consent in the first place. So any form of a sexual relationship between two minors can be counted as statutory rape.

In March last year, the Supreme Court decided to examine whether minors can be punished under POCSO for consensual sex. The concern was whether the law can be employed to “punish” teenagers for consensual relationships which later turn “sour.” In that case, a girl who was 17 then had accused a man of rape while he was 18. He was sent to 10 years of imprisonment under the POSCO Act, even though the girl later changed her stance to admitting they were in a consensual relationship.

The age of consent is indubitably a fraught issue. Some experts have noted the murkiness at play — even minor boys who are in consensual relationships can be booked for rape. A majority of cases of sexual assault under POSCO dealing with 16-18 years-old children are consensual in nature, reported by parents who disapprove of the teenagers’ conduct. “Young couples are harassed by their families in filing false cases of rape against their partners, which in fact is not rape and is a teenage romance,” argued lawyer Ragini Vinaik. She pointed out that Section 375 and 376 of the Indian Penal Code are “frivolously applied in cases to restore the family’s prestige and honor in society, ignoring the obvious consensual relationship between the young couple.”

Moreover, “it is implied that a child above 12 years of age develops sufficient understanding of the implications of an offense,” the Hindustan Times noted.

Then amending the law to lower the age of consent from 18 to 16 would mean “the girl has not been taken advantage of by a person who is much older,” Vinaik noted, adding it “could offer protection to the young 16-year-old girl from sexual exploitation, harassment, etc.”

The law tussles with reasonably framing a normal sexual activity and managing parental control over adolescents. In this case, the protection of sexual abuse survivors remains prime.


Written By Saumya Kalia

Saumya Kalia is an Associate Editor at The Swaddle. Her journalism and writing explore issues of social justice, digital sub-cultures, media ecosystem, literature, and memory as they cut across socio-cultural periods. You can reach her at @Saumya_Kalia.


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