Revision as of 23:00, 30 January 2016

The legal position in a nutshell

India’s age of consent for heterosexual sex has traditionally been 16 years except in Manipur, where it is 14. If the partners are married then a lower age of consent applies (13 in Manipur and, traditionally, 15 in the rest of India).(The Brothers Network, Zedenrecht)

In 2013, the age of consent was raised to 18 in the IPC, for the rest of India (excluding Manipur).

The view of senior Indian lawyers

A youth asked kaanoon.com ‘If anyone [has a] live-in relation[ship] with below 18 year girl..is that a crime? If both interested and like to each other to [have a] live-in relation?’ (Essentially, he wanted to know if having a live-in relationship with a girl who was younger than 18 years of age was a crime.)

All the lawyers on kaanoon.com opined that it was.

‘Having a live in with a girl who has not attained the necessary age is a crime. It amounts to rape,’ writes Ashish Davessar, Advocate, Jaipur

‘If you are in live in relationship [with a girl] below 18 years and even if consented for sex then also amounted to rape,’ adds Pradeep Bharathipura, Advocate, Bangalore

‘Don’t have any live in relationship with girl if she has not yet completed 18 years of age . you may unnecessarily land up in huge legal mess . as pointed out by experts even if it is consensual sex it amounts to rape,’ advises Ajay Sethi, Advocate, Mumbai

‘Do not have live in relationship with a minor girl even though it is consensual otherwise it amounts to rape and you will land yourself in trouble,’ Shashidhar S. Sastry, Advocate, Bangalore, reiterates.

‘Any relation with minor amount to rape if she goes against you. Age of majority is 18 years,’ Rajeev Bari, Advocate, New Delhi, warns.

The evolution of the consent laws in India

I: The Sangai Express, 2011

Though this excellent article comes from Manipur (the author’s name has not been stated), it covers the evolution of consent laws in India as a whole.

Child Marriage, Drug Abuse and Unemployment in Manipur

Mar 25, 2011 The Sangai Express

Let us briefly scan the measures implemented in the form of law prohibiting child marriage in India.

In 1921, the problem of child marriage was first posed in British India by Lala Girdhari Lal asking the government whether it would undertake legislation prohibiting the marriage of a girl below the age of 11 years and of a boy below the age of 14 years. The government expressed the view that, due to backward social conditions in the country, initiative in the matter should come from the private individual rather than from the government. In February 1922, Rai Bahadur Bakshi Sohanlal moved a bill in the assembly to raise the age of consent in both marital and extra-marital cases to 14. But some states were against it and only two states Bombay and Uttar Pradesh hailed the proposition with enthusiasm.

The matter was again taken up by Sir Hari Singh Gour in the assembly in 1924. The select committee to which the bill was referred allowed the age to be raised to 14 in extra-marital cases but reduced it to 13 for marital consummation. However the government did not allow the Bill prepared by the select committee to go through; instead it presented a Bill in September 1925, fixing 14 as the age in extra-marital cases and 13 in marital cases. The House was not however satisfied, and Sir Hari Singh Gour again pleaded in 1927 for the Bill thrown out in 1924. An age consent committee, popularly known as the Joshi Committee was thereupon appointed to go into the matter in detail. The Committee recommended that the age be raised to 15 in marital cases. Consummation before 15 was to be known as ‘marital misbehaviour’ and the offender was to be punished. In extra-marital cases the age was to be raised to 18. In the case of sexual intercourse with a girl under 15, the offender was also to be punished with transportation or imprisonment for 10 years.

To prevent premature consummation the Committee further recommended that the marriage of a girl under 14 should be prohibited and penalized. In pursuance of this the Child Marriage Restraint Act was passed in 1929. The Act considers a male under 18 and the female under 14 as a child. Whoever being a male above 18 years and below 22 years, contracts child marriage was made punishable. In the same case whoever performs, conducts or directs any child marriage was made punishable. However, the defect of this Act is that it did not make child marriage a cognizable offence and no action can be taken by the government for its breach unless a complaint was made within one year of the solemnization of the marriage. There were also other defects that the Act could not be successfully implemented. Trying to furnish the inherent lacuna, the Act was subsequently amended in 1938. The amended Act says “the Court may, if satisfied from information laid before it through a complaint or otherwise that child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons……prohibiting such marriage” after previously giving notice to such person to appear in person or by pleader and to show cause against the issue of the injunction. Whoever disobeys such injunction was made to be punished.

The Government not satisfied with the various measures concerning marriages of the Hindus appointed a Joint Selection Committee (JSC) to prepare a report so as to codify and amend the various laws into one single Act. Thus the Hindu Marriage Act of 1955 was to serve this purpose. However, the Hindu Marriage Act 1955 which prescribed 18 and 15 years for boys and girls respectively, though passed in post-independence era, remain silent about the effect on the validity of the marria-ge and continues the earlier policy in cases of violation.

In 1978 the Government moved for the amendment of the Child Marriage Restraint Act (CMRA) of 1929. The Law Minister, Justice and Company affairs, Shri Shanti Bhushan, placed the Bill to amend the CMRA, 1929 and to make certain consequential amendments in the Indian Christian Marriage Act, 1872 and the Hindu Marriage Act, 1955. The CMRA, 1929, provided that a male who was under 18 years of age and a female under 14 years of age were not entitled to marry. After much deliberation in the Parliament, the Marriage Bill was finally passed. Subsequently the Indian Christian Marriage Act, 1872, the Hindu Marriage Act, 1955, and the CMRA 1929, were thus amended stipulating 21 and 18 years as marriageable age for male and female respectively. However, despite the law, child marriage continued to take place. To ensure that child marriage is eradicated from within the society, the Government of India again enacted the “Prohibition of Child Marriage Act, 2006” replacing the earlier legislation of Child Marriage Restraint Act, 1929. This legislation is armed with enabling provisions to prohibit child marriages, protect and provide relief to victims and enhance punishment for those who abet, promote or solemnize such marriages. The Act also calls for appointment of Child Marriage Prohibition Officers for implementing the Act.

In my opinion there seems to be an allowance of the law as regard to Manipur. Our society boasts of the egalitarian structure where male and female are treated equally, but unbelievably this is a fairy tale. Quantitative data supporting my argument may not be available but in qualitative assessment of the subject brought forward through observational technique, I emphatically put down that rampant cases of child marriage is practised in Manipur. No protection officer or police are there to prevent solemnization of child marriage.

II: Damayanti Datta India Today, 2013

Who is an adult in India?
India Today

Age of Confusion

Who is an adult in India? There are at least five different definitions of who is an adult, and who is not, hidden in the nation's vast repertoire of over 30,000 Central and state laws.

Damayanti Datta India Today April 1, 2013

March 22, 2013 |

Defnition of Majority (as in adulthood)

When does a boy become a man? He can vote at age 18 but can't marry before age 21. No marriage, no fatherhood, right? No. The Majority Act of 1875 allows boys to adopt at 18. So when can a girl get married? At 18, under the Child Marriage Restraint Act of 1929. Yet, under the Hindu Marriage Act of 1955, a marriage is valid, once solemnised, even if a girl is under 15.

Who is an adult in India? There are at least five different definitions of who is an adult, and who is not, hidden in the nation's vast repertoire of over 30,000 Central and state laws. It's this fundamental contradiction that lies at the heart of the debate on age of consent (AOC)-the age below which 'consent' will not be a valid defence against a rape charge. It has split public opinion and divided legislators, sparking off a fierce debate from the streets to Parliament over the new anti-rape law.

Should it be 18 or 16? Hysteria has been the keystone of the controversy. Conservatives shrieked down the notion of 16 as the age at which young Indians can legally engage in sexual acts, although it has been India's AOC ever since the Indian Penal Code was amended in 1983 and many countries around the world have lower cut-offs than India. Liberals pitched for 16 and hammered home the effect a raised AOC would have on young India, given the changing social realities. The high-decibel drama came to an end on March 20, as Parliament set 18 as the age-limit under the Criminal Law (Amendment) Act, 2013. Going by it, sexually-curious under-18 boys can now be arrested, put in prison and even be charged with rape, if caught.

Is it biology, law, society or politics that decides the age of adulthood? "Age of consent, or a definite minimum age to engage in sexual activity, is how we measure adulthood," says jurist Ram Jethmalani

[In 1988], former Prime Minister Rajiv Gandhi had lowered the voting age from 21 to 18, he points out, and brought in 99 million voters to the electorate. "It's foolish to have so many laws without streamlining an accepted age of majority."

But AOC is a contested terrain globally. In the UK, AOC became a talking point in January with the government drawing up new laws on personal freedoms. "Across Europe, there have been calls for it to be lowered, as so many teenagers are sexually active at a younger age," says Ahin Choudhury, senior advocate with the Calcutta High Court. In 20 European nations, AOC is lower than 16, with the minimum of 13 in Spain. "These countries do not show any evidence that lower ages have led to more teen pregnancies, child abuse or sexual trafficking," he says.

History: The Phulmonee case of the 1890s

It was the marital rape and consequent death of an 11-year-old girl, Phulmonee, that first changed the minimum legal age for sexual intercourse in India from 10 to 12, way back in 1892. By 1949, with women agitating against the adverse effects of early pregnancy, the age was raised to 15. In 1983, amendments in the rape laws raised AOC to 16. "The problem started when the Government made 18 the cut-off in the Protection of Children from Sexual Offences Act, November 2012, without any discussion. Not even with those working on children," says Kavita Krishnan, national secretary of All India Progressive Women's Association. Although the Justice J.S. Verma Committee, in its report after the Delhi gang-rape case, mandated 16 as the cut-off, the Centre hurriedly introduced the rape ordinance fixing AOC at 18.

Courts, too, are raising a cautioning hand. "The legal system in our country cannot be used to punish youngsters in love," pointed out Delhi Judge [Ms.] Kamini Lau, in the case of State vs Krishan Rai Chaudhary, August 2012. Refusing to send an 18-year-old Delhi boy to jail for eloping with his girl-friend, she stated: "It is time for legislators to have a rethink¦ keeping in view the changing social attitudes and social sensibilities."

India Today annual sex surveys since 2009 show that one out of five teens claims to have had sex.

So you can't drive a car before 18 although you can roam around the streets on a 50 cc two-wheeler at 16. You cannot apply for your first independent passport before age 15 but are deemed fit to work after completing age 14 in most states across India. Your guardians will have the right to take your decisions till you are 18 but if guardians are appointed by courts then you can be an adult only at 21. You cannot be convicted of any offence if you are below 12, given adult punishment for murder if under 18 or convicted of an offence punishable with death or life imprisonment if under 21.

III: Manoj Mitta/ The Times of India: 2015

The Times of India Jul 11 2015

Identity Crisis - Consent: Underage wives can have sex, not teens

Manoj Mitta

Girls between 16 and 18 are now allowed less sexual freedom than their moms' generation, thanks to retrograde changes in the law

When the Indian Penal Code (IPC) was enacted way back in 1860, the age of consent -the minimum age at which a girl is legally competent to have consensual sex -was fixed at 10. In other words, even if she was a willing partner, sex with a girl less than 10 was deemed to be statutory rape. In 1891, the colonial government raised the age of consent to 12, following outrage over the death in Bengal of child bride Phulmonee as a result of “consensual sex“ with her adult husband.Yet, conservatives led by no less than Bal Gangadhar Tilak attacked the incremental reform as “dangerous precedent“ and “interference with Hinduism“. After a couple of more such incremental reforms, the age of consent stabilized in 1940 at 16, which is the global norm. Seven decades later, in an even more liberal scenario, conservative forces struck again, this time to increase -not decrease -the age of consent. What gave them the opportunity to demand raising the age of consent from 16 to 18 was the process of enacting a special law, the Protection of Children from Sexual Offences (POCSO) Bill. In 2011, a parliamentary standing committee headed by Oscar Fernandes recommended that change in the age of consent despite opposition from the ministry of women and child development. Strengthened by the standing committee's report, the conservative opinion forced the Manmohan Singh government to enhance the age of consent to 18 in the POCSO bill passed in the Budget session of 2012.

As a corollary, the government was confronted with the demand to make a corresponding change in the IPC. But the public outrage over the Nirbhaya gang rape in December 2012 came in the way as feminist groups lobbied with the government to keep the age of consent at 16. Eventually, the conservatives trumped the liber als when an all-party meeting compelled the government to drop the proposal of rolling back the age of consent to 16 in POCSO. So when rape provisions were tightened in 2013, the age of consent was raised to 18 in the IPC too.The resulting legal landscape is fraught with anomalies, making girls more vulnerable than ever before.

ILLIBERAL COMPANY

The most plausible justification offered for the enhanced age of consent is that it would be on a par with the age of marriage for women. But then, since the Prohibition of Child Marriage Act, 2006 (as discussed in an earlier article in this series) does not actually invalidate marriage of women below 18, the age of consent does not apply to an underage wife, unless she is below 15. The IPC continues to exclude underage wives between 15 and 18 from the ambit of rape. This despite the post-Nirbhaya recommendation of the Justice Verma Committee to remove the immunity granted to marital rape. For all the changes made to the definition of rape in 2013, it still bears this caveat: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.“ Thus, the Manmohan Singh government privileged the institution of marriage over the woman's sexual autonomy . This retrograde policy is being perpetuated by the Narendra Modi government, as borne out by a reply in Parliament in April. Citing a UN estimate that 75% of married women in India were subjected to marital rape, DMK MP K Kanimozhi had asked whether the government was planning to criminalize it. Junior home minister H P Chaudhary said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mind set of the society to treat marriage as a sacrament.“ The upshot is that while the age of consent has been increased for unmarried women to 18, it remains at 15 for those who are married.

The worst hit by the changes made in 2012 (through POCSO) and in 2013 (through IPC) are unmarried girls between 16 and 18.Till these changes kicked in, India, like other liberal societies, had allowed girls of this age bracket to engage in consensual sex. When it had this enlightened approach, India was in the company of Britain, Norway , Canada, Switzerland, Israel, Russia, South Africa and a majority of the states of the US.By criminalizing teenage sex in the manner it did, India has since landed in the company of illiberal democracies such as Rwanda, Uganda, Chile, Peru and Egypt.The only countries that are harsher than India on teenage sex are those which do not recognize any age of consent at all. In Islamic countries like Saudi Arabia, Yemen, Iran and Pakistan, any sex outside marriage is criminal and liable to severe punishment, even if it is entirely consensual.

BAD TO WORSE

Historians in the future may be hard put to figure why India chose to turn illiberal in this regard six decades after Independence. It is indeed ironic that while everything else has become more accessible, adolescent girls between 16 and 18 are now allowed less sexual freedom than their predecessors. Women's groups have therefore been campaigning that normal sexual exploration during growing-up years should not be criminalized.

The situation threatens to worsen once the new juvenile justice bill is passed into law. For, even if the male partner is also between 16 and 18, he will then be liable to be tried as an adult. One of the key provisions of the bill, which was passed by the Lok Sabha in May and is awaiting the nod of the Rajya Sabha, permits juveniles between 16 and 18 to be tried as adults for heinous offences, including rape. From the viewpoint of a girl between 16 and 18, this compounds the legal changes made in 2012 and 2013 which have already made it impossible for her to have consensual sex without exposing her partner to the charge of statutory rape. And now, if the Rajya Sabha too clears the juvenile justice bill, then her partner may be punished as an adult criminal, with a minimum sentence of seven years, even if he is of her age group.Teenage sex has never been more stigmatized in India.

IV: Indian Penal Code vs Child Marriage Act vs Child Trafficking Act

Union home minister Sushilkumar Shinde on Mar 26, 2013 cited the IPC of 1860 to defend his proposal for lowering the consent age for sex to 16 years, days after the anti-rape Bill passed by Parliament retained the age at 18.[[1]]

"The consent age of 16 years was incorporated in IPC (Indian Penal Code) in 1860. However, the minister, while making this assertion, did not mention about Child Marriage Act, which came into force in 2007, and Child Trafficking Act under which the definition of child has been fixed below 18 years.

Consensual sex with minor

Under the Protection of Children from Sexual Offences (POCSO) Act

Consensual sex with minor not crime, Delhi court says

TNN | Aug 26, 2013

The Times of India

Consensual sex with minor not crime, Delhi court says

The court made these observations while acquitting a 22-year-old youth of charges of kidnapping and raping a 15-year-old girl whom he later married.

NEW DELHI: A city court has observed that consensual sex with a girl aged below 18 years does not constitute an offence under the Protection of Children from Sexual Offences (POCSO) Act.

The court said the provisions of POCSO Act suggest that where a physical relationship — which is not in the nature of an assault — takes place with the minor girl's consent and where the consent has not been obtained unlawfully, no offence can be said to have been committed.

Rejecting the plea of the police and Delhi Commission for Women that POCSO Act prohibits minors from having any kind sexual relationship, additional sessions judge Dharmesh Sharma said, "I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the state and no individual below 18 years can be allowed to have pleasures associated with one's body."

ASJ Sharma, however, urged state authorities to spread awareness related to unsafe sex or early marriage. "But there lies a greater responsibility on all of us, the state including police in spreading and creating public awareness about the impact of girl or boy marrying at a tender age or indulging in unsafe sexual activities," he said.

The court made these observations while acquitting a 22-year-old youth of charges of kidnapping and raping a 15-year-old girl whom he later married. The youth, a native of West Bengal, was acquitted of the charges as the court held that the minor, on her own will, accompanied him and obstacles should not be put in their happy married life.

"As the evidence indicates, they got married voluntarily with their free consent. Hence no case is made out under section 363 (kidnapping) and 366 (kidnapping or inducing woman to compel her marriage) of the IPC," the court said.

"In my opinion, it would neither serve the object of present enactment (POCSO Act) nor the purpose of criminal laws to hold the accused guilty on the ground that he had sexual intercourse with the girl below 18 years," the judge said, adding that it would not be good for the girl if her husband was sent to jail. The POCSO Act treats girls and boys below 18 years of age as minors.

"It is high time that state authorities, its machinery, NGOs and women groups made a determined and sustained endeavour to reach out to all in schools, colleges and residential places, thereby creating public awareness on various aspects of life in case of marriage at a tender age... besides creating awareness amongst adolescents and young adults about the serious psychological and physical health issues that such a relation entails," the court observed.

According to the prosecution, a complaint was filed before the police on March 5 by the minor girl's mother about her daughter going missing since February 26.

The accused was arrested on March 6 and the girl was also recovered from his custody, it said. The girl, in her statement recorded before a magistrate, said she had willingly gone with the accused to his native place in Kolkata and they got married in a temple there and since then they have been living together.

During the trial, the youth told the court that the girl had accompanied him to Kolkata on her own and they got married there but he denied having physical relations with her. The court also noted that the marriage was accepted by the girl's mother.

Under Mohammedan Law

Rape case: Delhi court frees man, cites Muslim law PTI | Aug 6, 2013

The Times of India

NEW DELHI: A Muslim man has been absolved of charges of illegally confining and raping a minor from the same religion, whom he had married later by a Delhi court. The court cited the Mahomedan Law that allows a 15-year-old girl to marry against the wishes of her parents.

The accused was charged with rape and illegal confinement under the IPC.

The IPC treats a girl as minor, in relation to the offence of rape, till she attains the age of 16 years and establishing physical relations with her, even with her consent, is an offence entailing life term as maximum sentence.

See also

Age of consent in India

Premarital sex

Rapes in India