Author: Dev Singla, Student at Geeta Institute of Law
To the Point
The Protection of Children from Sexual Offences Act, 2012 (POCSO), was introduced to enhance the legal framework safeguarding children under 18 from sexual abuse, exploitation, and pornography.. One of its key features is that it makes all sexual activity with a person below the age of 18 a criminal offence, regardless of consent. This means that even if both individuals involved are minors and the act is consensual, it is treated as statutory rape.
This blanket approach to criminalizing all sexual activity involving minors has created a grey area, especially in cases of romantic relationships between adolescents aged 16 to 18. In such situations, a consensual relationship is often treated the same as a predatory offence, and one partner — typically the male — ends up facing charges of rape, aggravated sexual assault, or penetrative sexual assault under POCSO and the Indian Penal Code (IPC).
Courts across India have started acknowledging this growing concern. Many judges have observed that a significant portion of POCSO cases involve “romantic relationships” rather than exploitation, and that the criminal justice system is being misused by parents of adolescent girls who disapprove of their daughter’s relationship. These prosecutions can ruin the life of the boy involved, even if the girl has testified that the relationship was consensual.
According to the National Crime Records Bureau (NCRB) data and various High Court judgments, 50% or more of POCSO cases in certain states involve consensual teenage relationships. The law, though well-intentioned, fails to account for the psychological, emotional, and biological development of teenagers, who may engage in sexual activity out of curiosity, affection, or intimacy, not criminal intent.
Countries around the world are increasingly recognizing the need for a “close-in-age” exemption, which protects adolescents who engage in consensual sexual activity with a partner close to their age from criminal prosecution. India currently lacks such a provision.
This has led to increasing calls from legal scholars, child rights activists, the Law Commission of India, and even the judiciary for reforming the age of consent. The aim should not be to legalize child abuse, but to strike a balance between protecting minors from sexual exploitation and respecting adolescent autonomy in relationships. The next sections will explore the legal provisions, relevant case law, and proposed reforms in greater depth.
Use of Legal Jargon
To understand the legal complexity of the age of consent under Indian law, it is important to examine the key legal terms and provisions used in cases involving adolescents:
1. Age of Consent
The law recognises the age of 18 as the threshold at which a person can legally consent to sexual relations. As per Section 375 of the IPC and the POCSO Act, 2012, engaging in sexual activity with anyone under this age is considered statutory rape, even if the minor consents.
2. Statutory Rape
In such cases, the law presumes that a person under the age of consent cannot legally agree to engage in sexual acts. Under Section 375, sixth clause of IPC, sexual intercourse with a girl under 18 is considered rape even if consensual.
3. Consent (Section 90 IPC)
Consent under the law must be voluntary and informed. However, consent given by a minor is not legally valid. So even if a minor consents, it is treated as no consent in the eyes of the law.
4. Penetrative Sexual Assault (Section 3 of POCSO)
Defines sexual acts involving penetration with a child (under 18), punishable under Section 4 with a minimum imprisonment of 10 years, extendable to life imprisonment.
5. Aggravated Penetrative Sexual Assault (Section 5 of POCSO)
Covers cases where the accused is in a position of authority or trust, like a teacher or police officer. Punishment is more severe (minimum 20 years or life).
6. Romantic or Consensual Relationship Cases
These are not defined in the statute but recognized in judicial interpretation where both the accused and the victim are close in age and the relationship was consensual. Courts have started treating these cases differently from exploitative ones.
7. Doctrine of Evolving Capacity of Children
Recognized in international law (UN Convention on the Rights of the Child), this principle acknowledges that adolescents gradually develop the capacity to make informed choices. Indian law does not yet incorporate this principle formally in POCSO or IPC.
8. Close-in-Age Exemption
A legal concept followed in countries like Canada, the UK, and parts of the USA where consensual sexual activity between teenagers close in age (e.g., 16 and 17) is not criminalized. Indian law currently lacks this exemption.
The Proof
The call for reforming the age of consent under the POCSO Act is supported by credible data, legal reports, and judicial trends that highlight the law’s unintended consequences in cases of consensual adolescent relationships.
According to National Crime Records Bureau (NCRB) data from multiple states, a significant percentage of POCSO cases involve consensual relationships between adolescents. For instance, Maharashtra and Tamil Nadu have reported that 40–50% of POCSO cases in their jurisdictions arise from romantic relationships rather than incidents of abuse or assault. These cases are often initiated by parents or guardians who disapprove of the relationship, especially when it involves elopement or inter-caste/inter-religious issues.
In State of Madhya Pradesh v. Imran Khan (2022), the Supreme Court itself noted that a large number of POCSO cases involve “consensual romantic relationships,” and that courts must approach such cases with sensitivity. Similarly, the Delhi High Court in Satish Kumar v. State (2023) remarked that criminal prosecution in cases of consensual sexual acts between adolescents close in age may not serve the best interest of the child.
The Law Commission of India (Report No. 262, 2015) had earlier recommended reviewing the age of consent provision in POCSO, citing the need for a “nuanced legal response” that distinguishes exploitative sexual activity from consensual teenage intimacy. It suggested that a close-in-age defence should be considered to avoid criminalizing harmless conduct among peers.
In 2022, a Parliamentary Standing Committee on Home Affairs also suggested that POCSO should not be misused to punish young boys involved in consensual relationships with girls of similar age. Child rights organizations like HAQ Centre for Child Rights, CRY, and National Commission for Protection of Child Rights (NCPCR) have also highlighted the psychological trauma that criminal cases cause to both teenagers involved — particularly when no coercion, deceit, or force is alleged.
Many judges have also pointed out that under the present system, once a complaint is filed, the juvenile male partner faces arrest, denial of bail, and long criminal trials, even when the so-called victim does not support the case. In some cases, even marriages between consenting individuals have been questioned, leading to family breakdowns, school dropouts, and social stigma.
This body of evidence, both qualitative and statistical, shows that while POCSO is crucial in protecting children from real harm, its rigid application without considering adolescent autonomy and evolving maturity often results in injustice.
Abstract
The Protection of Children from Sexual Offences Act, 2012 (POCSO), was enacted to provide a strong legal framework to safeguard children from sexual abuse and exploitation. However, its strict interpretation — particularly the uniform age of consent set at 18 years — has sparked widespread debate. The law criminalizes all sexual activity involving minors, even if the act is consensual and involves adolescents close in age. This results in many cases where teenage romantic relationships are treated as statutory rape, leading to the criminal prosecution of adolescent boys, despite the absence of coercion, force, or exploitation.
Recent court judgments and data from the National Crime Records Bureau (NCRB) reveal that a significant number of POCSO cases involve such consensual relationships. Legal scholars, judges, and child rights groups have therefore called for a reconsideration of the age of consent in India, proposing the introduction of a “close-in-age” exemption to avoid misuse of the law. This article critically examines the legal, social, and psychological dimensions of the age of consent under POCSO, highlights its challenges, and proposes reforms that uphold both child protection and adolescent autonomy.
Case Laws
State of Madhya Pradesh v. Imran Khan, (2022) SCC OnLine SC 993
The Supreme Court noted that many POCSO cases involve consensual romantic relationships, especially in the 16–18 age group. It emphasized that courts must consider the nature of such relationships while applying strict provisions of the law.
Satish Kumar v. State, 2023 SCC OnLine Del 1128 (Delhi High Court)
The Court observed that criminal prosecution in cases of consensual sex between adolescents of similar age may not serve the objective of POCSO and can harm both parties emotionally and socially.
Independent Thought v. Union of India, (2017) 10 SCC 800
Though not directly on adolescent relationships, the Supreme Court held that child marriage is not an exception to the age of consent, reinforcing that consent from minors is not legally valid — but also opened discussions about reform in how the law treats evolving adolescent rights.
S. Singaravelan v. State, 2020 SCC OnLine Mad 11285 (Madras High Court)
The Court granted bail to a boy in a consensual relationship, stating that using POCSO in such cases leads to the “victimisation of the accused” and could ruin young lives.
Pradeep Kumar v. State of Jharkhand, 2019 SCC OnLine Jhar 150
The Jharkhand High Court quashed a POCSO case involving a 17-year-old girl and a 19-year-old boy, recognizing that the relationship was consensual and there was no element of coercion.
G. Sagar Suri v. State of UP, (2000) 2 SCC 636
Though not a POCSO case, the Supreme Court held that criminal law should not be used to settle personal scores or for harassment, relevant where POCSO is misused by families to oppose consensual relationships.
Conclusion
The age of consent under Indian law, as codified in the POCSO Act and Indian Penal Code, plays a crucial role in protecting minors from sexual exploitation. However, its rigid application without exceptions for consensual adolescent relationships has led to unintended consequences. A significant number of POCSO cases today involve romantic, non-exploitative relationships between teenagers, often criminalized due to parental disapproval or social stigma rather than any actual abuse.
While the original intention behind setting the age of consent at 18 was to offer maximum protection to children, it fails to account for adolescent maturity, emotional autonomy, and evolving capacity, which are now recognized in international child rights jurisprudence. The absence of a close-in-age exemption or a discretionary judicial safeguard leads to harsh outcomes, including criminal trials and long-term stigma for young boys, even when there is no victim in the traditional sense.
Indian courts, commissions, and lawmakers have begun acknowledging this gap and calling for legal reform. The objective should not be to dilute child protection laws, but to ensure that the law is not misused to punish innocent, consensual behavior between teenagers. A graded approach, possibly involving:
judicial discretion in such cases,
a close-in-age defence (like 16–18 years),
stronger role for Child Welfare Committees, and
better sex education,
will help strike a balance between protecting children from abuse and respecting adolescent rights. Reforming the age of consent framework under POCSO is not about reducing protections — it is about making those protections fair, proportionate, and just.
FAQS
Q1. What is the current age of consent in India?
The legal age of consent for sexual activity in India is 18 years. Any sexual activity with a person below 18 is considered statutory rape, regardless of consent.
Q2. Why is there a demand to reform the age of consent under POCSO?
Because a large number of POCSO cases involve consensual relationships between adolescents, not actual abuse. The current law criminalizes natural teenage behavior, leading to misuse and unfair prosecutions.
Q3. What is a “close-in-age” exemption?
It is a legal provision that allows consensual sexual activity between adolescents who are close in age (e.g., 16 and 17), without treating it as a crime. Many countries like Canada, the UK, and some U.S. states follow this model.
Q4. Does reforming the age of consent mean encouraging underage sex?
No. It means making a distinction between exploitation and consensual behavior. Reforms aim to protect children from abuse while avoiding criminalising harmless peer relationships.
Q5. Are Indian courts supporting such reforms?
Yes. Many High Courts and even the Supreme Court have noted that consensual teenage relationships are being punished under POCSO and have suggested that the law needs to evolve.
Q6. What are the possible solutions?
Introducing a graded age of consent, close-in-age exemptions, judicial discretion, better sex education, and parental awareness to avoid misuse of laws like POCSO.
Q7. Will this reform weaken child protection laws?
No. It will strengthen child protection by focusing resources on genuine abuse cases and ensuring justice is fair, sensitive, and age-appropriate.
