The big story

It’s a story playing on loop from Guwahati to Allahabad, Delhi to Meghalaya. The plot line is more or less the same: Teenagers in love. He’s 18, 19, or maybe 20. She’s 17 or 16. Everything is going smoothly until her parents find out. Perhaps she gets pregnant. Perhaps someone sees them together. Perhaps she’s run off with him. But all hell breaks loose. Maybe he’s of a different religion or caste, or maybe they’re just angry at the daughter’s exercise of choice.

They file a complaint of rape.

In 2014, when his 17-year-old daughter ran off with the 19-year-old man she loved, her father filed a missing person’s complaint with the police. The police tracked her down to Ghaziabad where she told them she had married her boyfriend in a temple. No matter. He was charged with rape and sentenced to seven years in prison by a trial court. He appealed.

Eleven years later, in February this year, Justice Jasmeet Singh of the Delhi high court finally acquitted him. The punishment handed out to him was a ‘perversity of justice’, the judge ruled. “It was a case of adolescent love and the physical relations were established consensually.”

By law, the age of consent is 18. In other words, sex with a girl who is less than 18 years of age, even if consensual, amounts to statutory rape.

The government’s own data, the National Family Health Survey-5 found that 39% of girls had sex for the first time before turning 18. This of course would include girls married off by their parents before the legal age. The survey doesn’t tell us of marital status, but it shows a large proportion of sexually active girls below the age of 18.

For 80 years, the age of consent was 16. Then in 2012, it was raised, without explanation or rationale, to 18 under the Protection of Children from Sexual Offences Act (POCSO). And it is this increase of age that is increasingly being used by parents to punish the consensual sexual relationships of their daughters in a country where sex, particularly pre-marital sex, is taboo.

“An increase in the age of consent violates the right to autonomy of children between the ages of 16 and 18 who have the ability to give mature consent to sexual activity,” argued senior advocate Indira Jaising who appeared last week as amicus curie: “To criminalize such an activity rather than addressing the issue of sex education, is arbitrary, unconstitutional and against the best interests of children as defined in law.”

Hard facts

The evidence on how romantic relationships between teenagers are being criminalized is chilling: One in five boys and men charged with rape under POCSO are in romantic, consensual relationships. In one study, it’s one in four.

A five-state study by the Centre for Child and the Law at the National Law School of India University that looked at 2,788 POCSO cases found that romantic, consensual cases made up 21.2% of cases in Andhra Pradesh, 15.6% in Assam, 21.5% in Delhi, 21.8% in Karnataka, and 20.5% in Maharashtra.

Another study by Enfold Proactive Health Trust looked at 7,064 judgements between 2016 and 2020 by POCSO courts in Assam, Maharashtra and West Bengal to find 1,715, or 24.3%, were romantic cases. In nearly half, 46.5%, of these cases, the girl was married to the accused.

The complainants in over 80% of these cases are parents and relatives. Only in 18.3% of cases was the complaint lodged by the girl on grounds of breach of promise to marry.

Acquittal rates are, fortunately, high. When judges hear from girls in romantic relationships, 93.8% of cases end in acquittals, found the Enfold study. But the time taken from the filing of the police complaint to judgment by the courts can take up to three years leaving young couples, many of them already married, some with children, on tenterhooks.

Looking for solutions

The courts are increasingly voicing their concern about consensual teenage sex being criminalized. In 2019, the Madras high court noted that sexual relations among what’s known as “mature minors” was not unnatural and recommended a revision of the age of consent.

The Allahabad high court echoed that view in October 2023 when it stressed that the fact of a consensual relationship borne out of love should be of consideration while granting bail.

In February 2024, the Karnataka high court quashed the criminal prosecution of a 20-year-old man who had married a 16-year-old girl and even had a child with her.

But court verdicts can go the other way. In 2019 in Maruthupandi v State, the Madras high court stuck to a literal interpretation of the law and stipulated that the penalties are attracted even though the relationship was consensual.

In May this year, the Supreme Court delivered its verdict on a case where the man was 25 and the girl only 14 when she ran off and married him in 2018. They subsequently had a daughter, and the girl, now a woman, was fiercely protective of her small family and wanted to continue the relationship.

The apex court, upheld the man’s conviction under POCSO but declined to sentence him. To send him to jail for the 20 years that he could have got, the court noted would only further harm the woman and her daughter.

I wrote about that verdict in an earlier column here.

Nobody disputes the need for POCSO in a country where a 2007 government survey found 53% of children had faced some form of sexual abuse. The need to protect children is urgent and real.

But the blanket criminalization of all sexual relationships with a girl under 18 is a travesty of the law that is placing pressure on an already over-burdened criminal justice system. A case-by-case approach that leaves justice to the discretion of judges cannot remain the solution.

Indira Jaising recommends a “close in-age exception”. The statutory age of consent would remain 18, but a close-in-age exception—where both adolescents are aged between 16 and 18 and where sex is consensual—would “preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature”, she said.