“High time to look around the world”: Bombay HC bats for lowering the age of consent for sex

• The Bombay High Court has expressed concern over the increasing number of cases where minors are being punished under the POCSO Act
• The Supreme Court said that the POCSO Act was enacted to protect children from sexual exploitation
• The HC stated that even if a 20-year-old boy were to marry a girl who is 17 years and 364 days old, the boy would be found guilty of raping the girl

The Bombay High Court has expressed concern over the increasing number of cases where minors are being punished under the POCSO Act, saying that with several countries lowering the age of consent for minors to enter into a sexual relationship, it is high time that for Parliament to take note of what is happening around the world. 

The High Court also discussed the age of consent for intercourse in various countries. In countries such as Germany, Italy, Portugal and Hungary, children aged 14 are considered capable of consenting to sex, while consent is at 16 in London and Wales and 13 in Japan, he said. “It was kept at 16 from 1940 until 2012, when the POCSO Act raised the age of consent to 18, which is probably one of the highest ages in the world, as most countries set their age of consent between 14 and 16. years," Judge Dangre noted.

The Supreme Court said that the POCSO Act was enacted to protect children from sexual exploitation, however, it created a gray area as it definitively resulted in the criminalization of consensual adolescent/adolescent relationship.

The High Court further stated that even if a 20-year-old boy were to marry a girl who is 17 years and 364 days old, the boy would be found guilty of raping the girl, even though the girl had clearly admitted that she was involved in the act of sex anyway. If a young boy was charged with raping a minor girl, only because he is under 18 but an equal participant in the act, the boy would suffer a serious dent that he would have to carry for the rest of his life, he added.

The Supreme Court observed that it is necessary for the country to look around the world in this regard. "Ultimately, it is for Parliament to consider the said question because it is aware of the cases that come before the courts, a large proportion of which are romantic relationships," the High Court said.

Justice Bharati Dangre was hearing the appeal of a person convicted under the POCSO Act for raping a girl who was just a few months short of turning 18. The girl said she was in love with the man, had consensual sex with him several times, married him and lived with him in different places after running away from her home. According to the girl, she was considered a major under Muslim law and therefore performed 'Nikah' with the accused man.

The High Court set aside the conviction and sentence of a man who was sentenced to 10 years' rigorous imprisonment under the POCSO Act, saying, "I cannot agree with the conclusion reached by the learned judge only on the ground that though the intercourse was consensual but the girl was a minor and based on this aspect, in my considered opinion, the appellant cannot suffer punishment in the case of consensual sexual act.” Justice Dangre also referred to a recent Madhya Pradesh High Court verdict in which the court had asked the central government to lower the age of consent for women to 16, noting that the current age of 18 was disruptive to the fabric of society.

"Concerns over the increasing number of cases where minors are being punished under the POCSO Act are being expressed by various fronts in various proceedings before the Supreme Court, High Courts of the country and also the Special POCSO Court where POCSO cases are tried." “Despite the clear stand taken by the woman on such an act that it was a case of consensual sex, the second part i.e. the man who was convicted under the POCSO Act on specific grounds supports that the POCSO Act was never intended to include consensual sex with a minor ,” said the Supreme Court.