Author: Kanak vashisht, Sgt university gurugram
To the Point
The Protection of Children from Sexual Offences (POCSO) Act, 2012, considers a child to be anyone below the age of 18 years, creating a legal fiction that every individual less than 18 years old is asexual and is not mature enough to give consent for such acts. Such a rigid presumption, however, is often in direct conflict with real-life maturity as teenagers do engage in consensual sexual activity, especially in “love relationships.” This article takes a fresh look: Is POCSO’s threshold based on a single age still justifiable in today’s context, or should it have some form of flexibility? Plus is there any chances to get to look the changes the age of consent in POCSO. and is that beneficial for us or for society. As well as it make things easy to court to solve POCSO case in less time.
Use of Legal Jargon
Legal Fiction: An assumption made by law that something is true, even though it may be untrue in fact, to achieve a legal end.
Real-life Maturity: The psychological, emotional, and cognitive maturity an individual may have independent of his or her actual age.
Consensual Relationship: Agreement or mutual consent between couples involved, generally referring to physical intimacy, without force or coercion.
Statutory Rape: Sexual relationship with a minor who is legally incapable of validly consenting under law regardless of the real consent.
Mens Rea: The act of having guilty thoughts; the intention of the mind which is not required in strict liability offences like POCSO.
Strict Liability Offence: An offence in which mens rea or intention is not considered; the mere doing of an act leads to liability.
What is consent?
If we think the general context the term consent means agreeing to something later it refers to sexual context. This term start using to both partners to having intercourse. we use the term consent. If there is no consent of other spouse then it considered as rape. But in matter of minor consent term not used because according to law minor person has not much knowledge about these things. they are easy to manipulate.
The Proof
Section 2(d) of the POCSO Act defines any person below 18 years of age as a child.
Under Sections 3 to 10, penetrative and non-penetrative sexual acts with or against the child constitute offences, even when consensual between the child and an adult.
Even marital sexual intercourse when the wife is under 18 years is criminalized under the IPC (Section 375 Exception 2).
There is therefore nothing in the POCSO Act to distinguish between consensual sexual acts by teenagers and cases of abuse.
Abstract
Enacted to protect children from sexual offences, the POCSO Act ends up criminalising consensual relationships among adolescents owing to the rigid nature of the law. It ignores the concept of evolving capacities and individual maturity and, hence, ends up criminalising teenage romance. This article analyses how the legal fiction of immaturity under POCSO overrides real-world assessments of maturity, discusses major judicial precedents with regards thereto, compares with foreign practices, and recommends a reimagining of the age of consent debate in India.
Case Laws
1. State v. Ram Singh & Ors (Nirbhaya Case) [2012]
Facts: A brutal gang rape and murder of a 23-year-old woman in Delhi.
Relevance: Triggered nationwide outrage and reforms in sexual assault laws including POCSO.
Connection: Shows the seriousness of sexual crimes, but unlike consensual teenage relationships, this case involved aggravated sexual assault and highlights where POCSO’s harshness is justified.
2. S. Vijaya v. The Inspector of Police [2021 SCC OnLine Mad 3177]
Facts: A teenage boy and girl in a consensual relationship — the boy was charged under POCSO.
Held: The Madras High Court urged the legislature to rethink the age of consent, especially for consensual teenage relationships.
Key Quote: “The law must evolve with society. Not every sexual relationship involving adolescents should be branded as exploitative.”
3. Independent Thought v. Union of India [(2017) 10 SCC 800]
Facts: Challenged Exception 2 of Section 375 IPC (marital rape of a minor wife).
Held: Sex with wife under 18 is rape; the Court harmonised the POCSO age with IPC.
Impact: Reinforced the statutory age, but again without evaluating individual maturity.
4. Kajal v. State of MP [(2020) 14 SCC 313]
Facts: Teenage lovers eloped and lived together; male partner charged under POCSO.
Held: The conviction stood as the girl was under 18; her consent was immaterial.
Analysis: A textbook example where real-life maturity was dismissed due to legal fiction.
Conclusion
POCSO was enacted to protect children against heinous sexual crimes. However, there is increasing proof from social realities against its blanket labeling of every person below 18 as an incapable of exercising sexual autonomy. The technical labeling of childhood under POCSO would ignore situations where teenagers acted under mutual understanding and emotional maturity.
Need is fast growing for the separation of exploitative sexual offenses from consensual love affairs among adolescents. What needs protection is their normal adolescent behavior which, if criminalized, takes upon itself great harm affecting even education, mental health, future prospects, and family relations.
Graded consent, i.e., “close-in-age” exemption, should be considered to save teenagers from punishment for consenting relationships. It is practice in many countries.
FAQs
Q1. What is the age of consent under POCSO?
Ans. It was reaffirmed that under the POCSO framework, the legal age of consent is fixed at 18. Hence, any sexual act involving a person below this age, regardless of mutual consent, is treated as statutory rape.
Q2. Can a 17-year-old girl’s consent be considered valid?
Ans. No. The law treats anyone under 18 as a child and their consent has no legal validity under POCSO.
Q3. Is there any difference between exploitative acts and consensual acts in POCSO?
Ans. No. POCSO does not distinguish between exploitative and consensual acts — both are punished equally.
Q4. What is the concept of legal fiction in POCSO?
Ans. Legal fiction means the law assumes all persons under 18 lack the capacity to consent, regardless of their actual maturity or understanding.
Q5. Are there any exceptions under POCSO for teenage relationships?
Ans. Currently, no such exceptions exist. Even consensual relationships between two minors or a minor and an adult attract criminal liability.
Q6. What reforms have been suggested in light of the legal fiction issue?
Ans. Courts and experts have suggested introducing close-in-age exemptions (e.g., 16-18-year-olds engaging with each other), or reducing the age of consent to 16 with safeguards.
Q7. How is the age of consent regulated in other countries?
Ans. Many countries like Canada, Germany, and the UK have a lower age of consent (15–16 years) and allow “close-in-age” exceptions for adolescent relationships.
Q8. What are the consequences for a boy in a consensual teenage relationship under POCSO?
Ans. He may face arrest, trial, and even conviction under Sections 4, 6, 8 of POCSO, including imprisonment and being listed as a sex offender — even if the girl’s family supports the relationship.
Q9. Does the Supreme Court acknowledge this problem?
Ans. The Supreme Court in some cases like Independent Thought and S. Vijaya has acknowledged the issue indirectly but a formal ruling creating exceptions is yet to come.
Q10. What is the way forward?
Ans. A legislative amendment introducing gradual criminal liability, close-in-age exemptions, and judicial discretion for consensual adolescent cases would ensure POCSO continues to protect children without overreaching into consensual relationships.
