[dropcap]T[/dropcap]HE Madras High Court has asked the Tamil Nadu government to consider redefining the word “child” to mean a person below 16 years of age instead of 18 for purposes of the Protection of Children from Sexual Offences (POCSO) Act 2012.
Delivering the judgment in Sabari v. The Inspector of Police and others, Justice V Parthiban of the Madras High Court said consensual sex or bodily contact of allied acts by a person after the age of 16 could be excluded from the rigorous provisions of the POCSO Act because adolescents above that age were capable of giving their consent to sexual relations.
The Court was hearing a case involving a couple – a 17-year old girl and a boy who was above the age of 18 – that had eloped. The grandfather of the girl has lodged a POCSO case against the man for allegedly kidnapping the girl and sexually assaulting her. The two persons were co-students and had known each other for a while.
The Madras High Court set aside the POCSO charges after noting that the prosecution had failed to submit sufficient evidence to make out a case. More importantly, the girl, the alleged victim, had asserted that she had consented to elope with the accused.
Noting that many of the POSCO cases involved minor teenage girls in sexual relationships with teenage boys, Justice Parthiban said:
“When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction.
Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes.
But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so-called offender of sexual assault, warranting a severe imprisonment of 7/10 years”.
Recommending that the definition of “child’ under Section 2(d) of the POCSO Act be changed to a person below the age of 16, instead of 18, the judge said, “Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act”.
Under Section 2(d) of the POCSO Act, a “child” means any person below the age of 18 years. In a case that involves a child victim, the prosecution must prove that on the date of the commission of the crime, the child was below the age of 18 (K. Muthu Mariappan v. The State MANU/TN/1611/2015). Rule 12 of the Juvenile Justice Act can also be used in criminal matters to determine the age of a child.
Rights activists have for long argued that the POCSO Act, 2012 does not confer any sexual autonomy to children who may then be liable for committing sexual acts under the penal law. Determining whether an allegation involving underage sex was forced or consensual would depend largely on individual interpretation of the circumstances. In the case of consensual sex between two minors, the victim and perpetrator become interchangeable depending on the age of the parties involved.
Background
In Santhosa v. State [2014 (3) Kar.L.J. 251], involving a young married couple, one of them a 13 years old girl, the court rejected the contention of the respondent that there was free consent of both victim and the accused for consummating the marriage. There have been several other cases where the court has rejected assertions of consensual sex involving a “child” teenager and has used Section 375 of the Indian Penal Code to frame the offence of rape. Section 375 says the consent of the teenager who is under 18 years of age is irrelevant. Similarly, for an offence under POCSO Act, which is a far more stringent Act, the consent of the child would be of no consequence.
International Comparison
In most countries, the age of consent varies between 13 and 18 years. The table below lists the age of consent in the selecting countries:
| Countries | Age of consent | Law |
| United States of America | Varies from state to state between 16 and 18 years. In some states, the difference in age between the two parties is taken into account. This can vary between 24 years. | Different state laws. |
| United Kingdom | 16 years | Sexual Offences Act,
2003 |
| Germany | 14 years (16 years if the accused is a person responsible for the child’s upbringing, education or care). | German Criminal Code |
| Sweden | 15 years (18 years if the child is the accused person’s offspring or he is responsible for upbringing of the child). | Swedish Penal Code |
| France | 15 years. | French Criminal Code |
| Malaysia | 16 years for both males and females. | Malaysian Penal Code;
Child Act 2001 |
| China | No information about consent. Sex with a girl below 14 years is considered rape. Sodomy of a child (male or female) below 14 years is an offence. | Criminal Law of China,
1997 |
| Canada | 16 years | Criminal Code of Canada |
| Brazil | 14 years | Brazilian Penal Code
2009 |
| Australia | Varies between 16 and 17 years among different states and territorial jurisdictions. In two states, a person may engage in sexual activity with a minor if he is two years older than the child. In such cases the child has to be at least 10 years old. | Australian Criminal laws |
| India | 18 years. | Protection of Children
Against Sexual Offences Act, 2012 |
