New Delhi: The Bombay high court on Monday, July 10 said that the age of consent should be distinguished from the age of marriage as consensual sexual acts can take place outside outside the latter. The court added that such relationships between minors should not be dealt with a punitive approach, LiveLaw reported.A single bench of Justice Bharati Dangre raised concerns over criminalisation of romantic relationships between minors and urged for a progressive approach that enables their access to sexual and reproductive health services instead, the report said.“The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect,” the court observed.“Whilst all children are entitled to be protected from sexual violence, such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk taking though not exposing them to inappropriate response, harm and danger. The penal approach towards adolescents’ sexuality has impacted their life to a barrier free access to sexual and reproductive health services,” Justice Dangre said.The court made these observations while acquitting a man convicted under the Protection of Children from Sexual Offences Act (POCSO Act) in 2016 for having sexual relations with a minor girl. The then 25-year-old man and 17-year-old girl said that they were in a consensual relationship. The girl also stated that she was an adult under Muslim law and hence she had Nikah (marriage) with the accused.The trial court had observed that while the relationship was consensual, the girl was a few months short of turning 18 and a sexual relationship with her would amount to rape since a minor’s consent is immaterial, LiveLaw reported.The high court noted that the evidence clearly established consensual sexual activity, and the conviction was erroneous.While citing examples of age of consent in various countries, the court said India has one of the highest age of consent globally.The court also said that the current provisions fail to consider societal realities and assume that every sexual engagement with a minor, regardless of their capacity to be an equal participant, constitutes rape, adding that POCSO was meant to deal with sexual abuse, not criminalise consensual relationship among minors.
