Introduction
The recent ruling by the Bombay High Court, declaring that sex with a minor wife below the age of 18 years constitutes rape regardless of consent is a pivotal moment of India’s statutory rape jurisprudence. This judgment aligns with the Supreme Court’s landmark decision in Independent Thought v. Union of India (2017) (“Independent Thought case”), that rendered the distinction between a married and an unmarried girl child to be an unconstitutional extension of Exception 2 to § 375 of the IPC, infamously retained vide § 63 of Bharatiya Nyaya Sanhita, 2023 (“BNS”). The present case before the Bombay HC involved coercion and non-consensual sexual intercourse leading to pregnancy which was followed by allegations of infidelity, physical abuse and pressure to get an abortion. The Court effectively established that marriage is not a license for child sexual abuse and ruled the hitherto legal defence of implied consent through marriage ineffective in cases involving a minor girl. This sets a progressive precedent that carves out an exception to the marital rape exception. The Bombay High Court ruling is indeed a stepping stone to gender equality and the eradication of the social evil that is child marriage. However, on the flip side, it also sets a dangerous precedent that paves the way for blanket criminalisation of consensual adolescent sexual relationships.
The article will first outline the present legal framework governing statutory rape laws in India and the jurisprudence that follows. Secondly, the article will delve into the issue of criminalisation of consensual adolescent sexual relationships and highlight why the present laws are inadequate to deal with the problem. Thirdly, the extent of the problem is gauged by a critical analysis of the Law Commission recommendations warning against the misuse of POCSO and exploring potential remedies. Lastly, the article goes on to prescribe a solution by prescribing amendments to POCSO in the form of a Romeo Juliet clause by building upon a cross jurisdictional analysis.
Statutory Rape and the Constitutional Paradigm
Statutory rape laws in India are primarily governed by the Protection of Children from Sexual Offences Act , 2012 (“POCSO Act”), and § 65 (1) and (2) of the BNS. § 4 (1) of the POCSO Act prescribes rigorous punishment for those convicted of penetrative sexual assault of children (below the age of 18 years) ranging from a minimum of ten years to life. If the child is below 16 years of age, the punishment ranges from twenty years to the remainder of the natural life of the convicted. It is of immense importance to note the definition of “penetrative sexual assault” as explained in § 3 of the POCSO Act which makes no reference to consent (or the lack thereof) of the co-participant child while defining the offence. The newly enacted BNS reinforces this rigorous prescription while defining rape for a girl child in S 63 (vi) to mean “with or without her consent, when she is under eighteen years of age”.
Criminalisation of consensual adolescent sexual relationships
Statutory rape is an exception to the rule that sex based on mutual consent cannot be called rape. In most cases like these, the older of the two persons engaged in sexual activity—albeit one involving free consent of the participants—is found guilty under relevant sections of the POCSO Act, solely because consent of a minor does not meet the rigid rule laid down by the law. An adolescent’s experience with the criminal justice system thus hinges primarily on what factors are considered relevant to determine whether a minor is competent to consent.
Renowned feminist legal scholar Joseph J opines that competence can be best understood as a spectrum, wherein he uses sociological evidence to conclude the gradual moulding of competence which is not restricted to any particular moment such as the turning of sixteen or eighteen years of age. It is by echoing similar sentiments that the Madras HC in the case of Vijayalakshmi & Anr v State quashed criminal proceedings due to an evidently consensual relationship between the parties. In doing so, the court acknowledged the psychological attributes of adolescents “who are in grips of their hormones and biological changes” and rightly strayed away from creating a legal impediment that halts the biological flow; yet it lacked a statutory framework to support its reasoning.
Women’s rights advocate Flavia Agnes has flagged concerns where age-of-consent is misused as a tool to impose parental control over adolescent girls. Such concerns are evidenced in studies which indicate that the application of POCSO in cases of consensual relationships often leads to paradoxical outcomes. Reports reveal that a significant percentage of POCSO cases involve consensual adolescent relationships rather than instances of coercion or exploitation. It is common in elopement cases for parents to file rape charges against the boy or man who eloped with a girl to pressurise him to return their daughter, so that they can marry their daughter to the man of their choice, which in turn endorses rigid adherence to intra-caste marriages. The extent of the problem can be gauged by a UNICEF study about “romantic” relationships, i.e. cases which involve the victims being in a consensual relationship with the accused. According to their findings, a total of 1715 cases between 2016 and 2020 were romantic cases, wherein 80.2% of the informants were parents or relatives of the “victim”.
The blanket criminalisation of sexual activity involving individuals below 18 years is a nail in the coffin for adolescent autonomy and their evolving capacities, grossly undermining their fundamental right to a dignified life with personal liberty under Article 21 of the Indian Constitution, ensconced by the landmark Maneka Gandhi judgement. It is high time that healthy and consensual relationships that the adolescent may form with their peers—which might evolve into sexual ones—is recognised as part and parcel of the child’s right to a private life along with the physical, moral and social development that is guaranteed by the Convention on the Rights of the Child (CRC) which has been ratified by India.
Judicial interpretations and the grey area of consent
Judicial interpretations of the POCSO Act reveal conflicting approaches to the consent of minors. On one hand, courts like the Karnataka High Court in the Independent Thought case rigidly uphold the fixed-age rule, criminalizing consensual relationships. On the other, cases like R. Parthiban v. State and Ranjit Rajbanshi v. State of West Bengal considered the voluntary nature of adolescent sexual activity, and quashed complaints in the absence of coercion or exploitation. This position was recently reinforced by the Madras HC in the case of Balaji v. Inspector of Police, where the court considered humanitarian aspects as opposed to a strict interpretation of the law. However, such purposive interpretations are ad hoc and lack a consistent legal framework.
Overinclusive criminalisation of the acts of innocent adolescents often results in judicial discretion being applied inconsistently. Courts have downplayed the significance of the participant’s consent and thereby observed rigid adherence to the present laws. Such a stance was adopted by the Madras HC in the case of Maruthupandi v. State where the consent of a minor was rendered wholly immaterial in deciding the case.
Such decisions of the courts, although noble in their intentions, when analysed in the absence of a legally, sociologically and psychologically sound framework outlining the competence of a child to consent betray the strict interpretation of the POCSO Act, which is a penal statute. Such an issue is evidenced in the case of Imran Iqbal Shaikh vs State Of Maharashtra, where the court has termed the relationship amongst the accused and the minor as consensual without delving into the intricacies, which resulted in sharp criticism and outrage. This unchecked judicial discretion has the potential to reverse the originally intended outcomes of the Act.
Critical analysis of Law Commission’s recommendations
However, the concerns regarding a circumstance blind approach adopted by the judiciary resulting in overinclusive criminalisation in such cases is not new. The Law Commission of India, in its 283rd Report addressed critical issues surrounding the misuse of the POCSO Act. The Commission rightly acknowledged the potential for severe legal as well as social repercussions for those convicted based on false accusations which defies the very purpose of enactment that is nipping child sexual abuse in the bud.
Overall, the report focused on three key recommendations—retaining the age of consent to the present framework of eighteen years, advocating for greater judicial discretion while sentencing and lastly listing out much-needed amendments to relevant laws. The article focusses on the latter two, arguing for a more nuanced consideration of solutions revolving around the same.
Increased judicial discretion aligned with relevant amendments
At present, the mandatory minimum sentences (10 years and 20 years respectively for minors aged under eighteen and sixteen) in the POCSO Act provide no statutory discretion to judges considering mitigating factors and imposing a lesser sentence. The recommendation thus aims to bring in the requisite amendments to § 4 of the POCSO Act to ensure that cases involving genuine affection or relationships do not automatically lead to harsh penalties that could adversely affect young individuals’ futures.
The report underscores that while safeguarding children is paramount, it is equally essential to prevent the law from being weaponized against innocent young adults. By allowing judges to consider the context and circumstances surrounding each case, child protection laws can be applied more fairly and effectively.
The third recommendation aims to align the proposed POCSO amendment to other relevant laws, namely the Juvenile Justice (Care and Protection of Children) Act, 2015 (to address the prosecution of minors involved in sexual offenses by adding a proviso to Section 18) which allows the Juvenile Justice Board or special court to pass appropriate dispositional orders if a child is found to have committed a sexual offense under the POCSO Act against another child aged sixteen or above, provided there are special and adequate reasons recorded in writing. Additionally, the amendments seeked to clarify potential conflicts between the POCSO Act and the then Sections 375 and 376 of the Indian Penal Code regarding sexual offenses.
Cross jurisdictional analysis and proposed reforms
India’s rigid statutory framework comes in stark contrast with progressive approaches in several jurisdictions. For instance, the Canadian Criminal Code sets the age of consent at 16 but includes close-in-age exceptions for adolescents in relationships with individuals up to five years older, provided there is no exploitation. Similarly, several U.S. states adopt Romeo-Juliet laws to decriminalise consensual acts between peers.
A Romeo Juliet clause refers to a legal provision that exempts consensual sexual activity between minors or between a minor and an individual close in age from the application of statutory rape laws. Such a clause reduces or eliminates statutory rape charges and penalties when both parties are close in age and the relationship is consensual. The insertion of a Romeo Juliet clause in the POCSO Act would provide courts the authority to assess the nature of the relationship and decide on the appropriateness of charges or penalties; in line with the Law Commission’s recommendations as outlined previously.
To address this overcriminalisation, the following amendments to the POCSO Act are proposed:
1. A provision in the form of Section 20 (A) of the POCSO Act can be made to include a Romeo Juliet clause.
Notwithstanding anything contained in this Act, in cases involving consensual sexual activity where both parties are minors or where one party is a minor and the age difference between the parties is less than five years, the Special Court may exercise discretion to:
a) Determine whether the act was consensual, non-coercive, and free from exploitation; and
b) Impose a lesser sentence or dismiss the case entirely based on the findings.
2. The mechanism for resolving such cases can be equipped by codifying the scope for consideration of mitigating factors in the POCSO Act. The following amendment can be made to Section 4 (punishment for sexual assault):
Provided that in cases of consensual sexual activity between minors or between a minor and an individual not more than five years older, the court shall consider mitigating factors such as:
a) Proximity of parties in age (with a difference of no more than three years);
b) Evidence of mutual consent;
c) Absence of coercion, exploitation, or abuse of power;
d) The social and psychological context of the relationship; and
e) The accused’s lack of criminal antecedents and good conduct post-offense.
3. To enable the POCSO Act to keep up with the current socio-cultural developments around the world, it is of utmost importance to bring in a gender-neutral wording.
Accordingly, the references to “he” or “she” in Section 2(d) (definition of child) and Section 7 (sexual assault) could be replaced with “they”.
4. The author is in no way sanctioning child marriages or arguing for their legitimisation. However, alternative methods could be adopted to effectively address the same. One such method is the rehabilitation and counselling of the parties involved, which could be incorporated by adding Section 42C to the POCSO Act:
In cases involving consensual sexual activity of minors, with no prima facie mental or physical abuse meted out to either of the parties involved, the parties shall be referred to counselling services to inform them of their rights, responsibilities, and sexual health.
The amendments bring home the point that it is not sex itself that is problematic, but the social relations that shape it. Furthermore, the emphasis on rehabilitation over punitive measures endorses a restorative justice approach advocated by various international treaties, such as the Convention on the Rights of the Child (CRC), which advocates for the best interests of children and encourages protective rather than punitive responses in cases involving minors.
The blanket criminalisation of adolescent sexual exploration has led to severe penalties for young individuals engaging in consensual relationships. If courts are allowed to impose lesser sentences than the minimum prescribed in specific circumstances, the judges can consider the unique context and circumstances of the cases. This will ensure that families are not torn apart by unjust imprisonment, which disproportionately affects the male in the family.
Conclusion
A PIL is currently under consideration with the Supreme Court, wherein it has sought the central government’s views on implementing a Romeo-Juliet clause to deal with cases of consensual teenage relationships. By adopting a competence-based standard, guarded by procedural safeguards and informed by international practices, the law can differentiate between exploitation and consensual acts. The ball is in the lawmakers’ court to remedy this injustice, and it should serve as a clarion call to craft a more balanced legal framework that upholds both the protective intent of the law and the fundamental rights of adolescents.
(This post has been authored by Winnie Bhat, a first-year student at NALSAR University of Law, Hyderabad.)
CITE AS: Winnie Bhat, ‘Between Love and Law: A Call to Rethink Statutory Rape in India’ (The Contemporary Law Forum, 18 January 2025) <https://tclf.in/2025/01/18/between-love-and-law-a-call-to-rethink-statutory-rape-in-india/>date of access