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“High time to look around the world”: Bombay High Court bats for lowering the age of consent for sex, says POCSO has criminalised consensual relationships

The Protection of Children from Sexual Offences (POCSO) Act has led to an increase in criminal cases where the accused are punished even though the adolescent victims insist that they were in a consensual relationship, which has alarmed the court.

The Bombay High Court recently said that it was past time for our country and the Parliament to be aware of what was happening across the world after observing that various nations around the world have lowered the age of consent for minors to engage in consensual sexual relationships.

The Protection of Children from Sexual Offences (POCSO) Act has led to an increase in criminal cases where the accused are punished even though the adolescent victims insist that they were in a consensual relationship, which has alarmed the court.

On July 10, Justice Bharati Dangre issued a ruling to that effect, noting that numerous nations have lowered the legal age of consent for minors to engage in consensual sexual encounters.

“Sexual autonomy encompasses both the right to engage in wanted sexual activity and the right to be protected from unwanted sexual aggression. Only when both aspects of adolescent’s rights are recognised, human sexual dignity can be considered to be fully respected,” the order said.

The court’s comments followed an appeal by a 25-year-old man contesting a special court’s judgement convicting him in February 2019 for raping a 17-year-old girl.

The couple insisted that their relationship was consensual. The girl testified before the special court that she had a Nikah with the accused guy since, in accordance with Muslim law, she was regarded as a major.

The evidence on file had unmistakably established a case for consensual intercourse, according to Justice Dangre, who revoked the conviction judgement and declared the man innocent.

The age of consent necessarily must be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage. The judicial system must take note of this important aspect, the high court said.

“The age of consent in India was 16 from 1940 till 2012, when the POCSO Act raised the age of consent to 18 years. Most countries have set their age of consent in the range of 14 to 16 years”, the court said.

Justice Dangre further noted that in Germany, Italy, Portugal and Hungary, children in the age group of 14 are considered capable of giving consent to sex. In London and Wales, the age of consent is 16 and in Japan, it is 13

“In India a girl under 18 is expected not to indulge herself into a sexual activity and if she does, being an active participant in the activity, her consent is immaterial and is not a consent in the eyes of law. As a result, even if a boy aged 20 indulges with a girl aged 17 years and 364 days, he would be found guilty of committing rape upon her despite the girl clearly admitting that she was equally involved in the act of sex. It is high time our country is also cognizant of happenings around the world,” Justice Dangre said in the judgment.

The court stated that although the POCSO Act was designed to combat child sexual exploitation, it has nonetheless created a grey area because it has unquestionably led to the criminalization of consensual adolescent and teenage relationships.

The court ruled that while all children had the right to be protected against sexual assault, that protection should also allow young people to push their boundaries, exercise their rights, and take necessary risks without putting them in danger.

It asserted that by requiring a large amount of time from the judges, police, and child protection system, the criminalization of romantic relationships had taken hold of the criminal justice system.

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