This year, the Supreme Court and high courts frequently faced cases where a ‘coming-of-age’ female child married and the male partner ended up facing charges. These cases happened in the backdrop of ‘love jihad’, ‘forced conversions’, ‘honour killings’, ‘lavender marriages’ and many other socio-political and economic contexts.
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ON January 23, Chief Minister of Assam Himanta Biswa Sarma announced a decision of the state cabinet to begin a major statewide drive to curb child marriages in the state.
Under the drive, persons who married a girl child under the age of 14 years were arrested under the Protection of Child from Sexual Violence Act, (POCSO Act) 2012, while those who married girls between 14–18 years of age were arrested under the Prohibition of Child Marriage Act, (PCMA) 2006.
The POCSO Act is a special law that protects children from sexual assault, sexual harassment and pornography. It defines a child under Section 2(d) as any person below the age of 18 years. The law only makes one bifurcation based on age, wherein it says that a sexual assault committed on a child below 12 years is considered ‘aggravated penetrative sexual assault’.
The age at which the application of the POCSO Act ends is the same as the minimum age of consent defined under the Majority Act, 1875 for both males and females.
The POCSO Act is a special law that protects children from sexual assault, sexual harassment and pornography. It defines a child under Section 2(d) as any person below the age of 18 years.
However, the minimum age of consent comes in conflict with the PCMA, in the case of a male, because the PCMA defines a male ‘child’ under Section 2(a) as below the age of 21 years.
Whereas, for a female child, the minimum age of consent is the same as the minimum age of marriage under the PCMA. The minimum age of marriage under the PCMA is the same in personal laws such as Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936 and the Indian Christian Marriage Act, 1872.
By February 17, 4,235 cases were registered. The total number of accused persons arrested was 6,707. The total number of arrests made by the Assam state police was 3,047, among which 2,954 were male and 93 were female. The sudden arrests of male partners left the girl child in distress, and many were compelled to commit suicide. In the latest crackdown in October, another 1,039 arrests were made.
Sarma’s latest statement suggests that the Assam government aims to end the “abhorrent practice” of child marriage by 2026.
Also reads: Can FIR under POCSO be quashed if offender marries victim? Himachal HC refers matter to a larger Bench
The incident left many child rights organisations and activists questioning the use of criminal law to curb child marriages. The policy decision also posed a larger question of criminalising consensual adolescent relationships, which many high courts have frequently faced this year. However, the year ended, but there was no judicial consensus on the issue.
Juvenile romance and inconsistent judicial approach towards it
This year, the Supreme Court and high courts frequently faced cases where a ‘coming-of-age’ female child married and the male partner ended up facing POCSO Act charges. These cases happened in the backdrop of ‘love jihad’, ‘forced conversions’, ‘honour killings’, ‘lavender marriages’ and many other socio-political and economic contexts.
In January, the Delhi High Court dealt with a POCSO Act case where two minors, a 17-year-old girl and an 18-year-old boy, got married and the girl got pregnant. In October 2021, charges were framed against the accused under Section 376(2) (punishment for rape) of the Indian Penal Code (IPC), 1860 and Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act.
The minimum age of consent comes in conflict with the PCMA, in the case of a male, because the PCMA defines a male ‘child’ under Section 2(a) as below the age of 21 years.
The boy, now 20 years old, sought bail on the grounds that they were in a consensual relationship. In X versus GNCTD (2023), Justice Anup Jairam of the Delhi High Court granted bail. In another similar case in February, Justice Jairam granted bail to a 21-year-old who was in a relationship with a 17-year-old girl and she got pregnant. In Akash versus State of NCT of Delhi & Anr (2023), the court granted bail on the ground that the girl victim intended to marry the accused.
Similarly, the Gujarat High Court found itself on the same footing as the Delhi High Court in dealing with a POCSO Act case where the girl victim was 17 years, 2 months and 23 days when she married a 21-year-old.
In February, in Ravi Hareshbhai Patni versus State of Gujarat, the high court granted bail to the accused and suspended his sentence till the criminal appeal challenging the conviction of the trial court was disposed of.
It recognised that there is an element of a ‘love affair’ and that parties have been residing together as husband and wife. However, when faced with similar cases and the plea to quash criminal proceedings as the parties have arrived at a compromise, the high courts found themselves at extreme ends.
The High Court of Himachal Pradesh dealt with a case in November where an FIR was registered against an accused person under Section 4 (punishment for penetrative sexual assault) of the POCSO Act along with other charges under the Indian Penal Code, 1860. However, the parties wanted the charges to be dropped against the accused because they arrived at a compromise.
Also read: Age of consent, marriage and the POCSO Act
The power to quash criminal proceedings is exercised by high courts under Section 482 (saving of inherent powers of high court) of the Code of Criminal Procedure, 1973. These inherent powers are to be exercised cautiously.
The jurisprudence on how Section 482 is to be exercised has been settled by the Supreme Court in Gian Singh versus State of Punjab (2012), Narinder Singh and Anr versus State of Punjab (2014), State of Madhya Pradesh versus Madan Lal (2015) and Daxaban versus State of Gujarat and others (2022).
In all the judgments, the Supreme Court held that in exercising the power to quash criminal proceedings, due regard must be given to the “nature” and “gravity” of the crime committed. Further, the court stated that heinous and serious offences of mental deprivation or offences such as murder, rape and dacoity, cannot be quashed even though the victim or her family has settled the dispute. This is because such offences are not private and have a serious impact on society.
On November 4, Justice Virender Singh of the Himachal High Court in Ranjeet Kumar versus State of Himachal Pradesh held that a “compromise of the child victim and her parents with the petitioner is inconsequential”.
However, the court referred the matter to a larger Bench considering the coordinate Benches of the high court in Sahil versus State of Himachal Pradesh and others (2022) and Sakshi and others versus State of H.P. and others (2021) had quashed an FIR under the POCSO Act, while in Santosh Kumar and another versus State of H.P. and another (2023), the high court refused to quash the FIR.
Coming-of-age cases in India lead to the criminalisation of adolescent relationships, where one partner ends up getting protected under the POCSO Act while the other suffers from criminalisation either under the Juvenile Justice (Care and Protection) Act, 2015 or the IPC.
In January, the Delhi High Court dealt with a POCSO Act case where two minors, a 17-year-old girl and an 18-year-old boy, got married and the girl got pregnant.
In a study by Enfold Proactive Health Trust and UNICEF-India, it was found that one in every four cases under the POCSO Act in West Bengal, Assam and Maharashtra constituted ‘romantic cases’, where the victim was found to be in a consensual relationship with the accused.
Last year, the Karnataka High Court and this year the Madhya Pradesh High Court sent a reference to the Law Commission of India to rethink the age criteria under the POCSO Act. The Madhya Pradesh High Court stated that gross injustice has been caused by the POCSO Act in its current form.
In September this year, the Law Commission of India sent its report to the Union law ministry in this regard.
In its 283rd report, the commission ruled out any possibility of reducing the age of consent from 18 years to 16 years. The commission also ruled out the possibility of reducing the age of consent to 16 years or introducing a limited exemption in case of a consensual sexual act involving a child below the age of 18 years and above the age of 16 years.
In both cases, the commission cited the possibility of misuse.The commission stated that reducing the age of consent would lead to a situation where it would be difficult to determine whether the consent given is free or manufactured. It also noted that reducing the age of consent has a direct impact on child marriages. On creating an exemption for children between 16 to 18 years of age, the commission said that this exposes them to “unchecked exploitation”.
The commission then recommended amending the POCSO Act to grant greater judicial discretion to judges when dealing with ‘close-in-age’ cases.
Globally, the consensus is to have age of consent at 16 years. In June this year, Japan raised its age of consent from 13 years to 16 years. However, the age of consent is as low as 11 years in some countries such as Nigeria, and 12 years in Angola and the Philippines.
On the other end of the spectrum, the age of consent is 20 years in South Korea.
Many countries which provide for a minimum age of consent have ‘close-in-age’ exemptions. Commonly known as ‘Romeo and Juliet’ clauses, such exemptions negate criminal liability on adolescents engaging in consensual sexual acts if the age gap between the partners is not five years or so.
In India, during the drafting of the POCSO Bill, the National Commission for Protection of Child Rights proposed decriminalising consensual penetrative sexual acts between persons above 14 years and of the same age within three years of each other. Thereafter, in 2013, the Justice J.S. Verma Committee on Amendments to Criminal Laws, which was established after the gruesome Nirbhaya gang rape, suggested lowering the age of consent to 16 years.
On November 4, Justice Virender Singh of the Himachal High Court in Ranjeet Kumar versus State of Himachal Pradesh held that a “compromise of the child victim and her parents with the petitioner is inconsequential”.
In December last year, the Chief Justice of India (CJI) Dr D.Y. Chandrachud appealed to the Parliament to relook at the issue of the age of consent under POCSO, as the courts face a dilemma in examining cases involving consensual sex between adolescents.
Child marriage: Conflict between PCMA and Mohammadan law
In the beginning of the year, the Supreme Court heard a challenge to the Order of the Punjab and Haryana High Court which held that a minor Muslim girl can legally enter into a valid marriage.
In Javed versus State of Haryana and Others (2022), Justice Vikas Bahl of the high court held that a marriage contracted under Mohammedan law by a 15-year-old Muslim girl is not void under Section 12 (marriage of a minor child to be void in certain circumstances) of the PCMA. A petition was filed by the National Commission for the Protection of Child Rights challenging the judgment before the Supreme Court.
In the National Commission for Protection of Child Rights (NCPCR) versus Javed & Ors., the Bench of the CJI and Justices P.S. Narasimha and J.B. Pardiwala declined to stay the Order. The court took into consideration the fact that if it stayed the Order, the girl child would be restored to her parents’ custody and they wanted her to marry her maternal uncle. However, it passed an interim direction stating that the Order of the high court must not be treated as a precedent.
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 says that the question of marriage shall be considered under the Muslim personal law. Under Shariah, a girl becomes eligible for marriage upon attaining the age of puberty.
While the PCMA may consider their marriage voidable at the options of the parties, the marriage is valid as per Shariah.
Previously, while the Punjab and Haryana High Court and the Delhi High Court have given sanction to personal laws over the secular laws prohibiting child marriage, the Kerala High Court has taken a contrary stand.
Last year, the Karnataka High Court and this year the Madhya Pradesh High Court sent a reference to the Law Commission of India to rethink the age criteria under the POCSO Act.
Moreover, if there is a physical relationship involved, the POCSO Act will be attracted. This position was further solidified by the Supreme Court in Independent Thought versus Union of India & Anr (2017) where it read down Exception 2 to Section 375 of the IPC to the extent that it provided that sexual intercourse with a wife between 15 to 18 years of age is not statutory rape.
In any case, Section 42A of the POCSO Act provides that the law has an overriding effect over any such inconsistency.
Conclusion
While the judiciary in India has not taken a clear position in dealing with cases under the POCSO Act pertaining to adolescent romance, the conflict between secular laws and personal laws on child marriage continues to cause confusion.
Previously, while the Punjab and Haryana High Court and the Delhi High Court have given sanction to personal laws over the secular laws prohibiting child marriage, the Kerala High Court has taken a contrary stand.
With the introduction of the Prohibition of Child Marriage (Amendment) Bill, 2021, to raise the minimum age of marriage for women to 21 years, how will this impact Muslim personal law is an issue to be kept in abeyance.
As for the issue of child marriage, the solution may be declaring such marriages void.
