The Bombay High Court has expressed concern over the increasing number of criminal cases involving minors in consensual sexual relationships. The court has called for a shift from a punitive approach towards adolescents’ sexuality to one that enables access to sexual and reproductive health services.
Justice Bharti Dangre, in her observations, emphasized the need to protect children from sexual violence while also allowing young people to extend their boundaries, exercise choices, and engage in necessary risk-taking. She stated,
“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 court noted that the criminalization of romantic relationships has burdened the justice system, consuming significant time and resources. It stressed the importance of striking a balance between the protection of vulnerable classes and those capable of deciding what is right for them.
Justice Dangre stated,
“Though it is the duty of the State to safeguard the ability to take decisions and to protect the autonomy of the individual, the adolescents cannot be deprived of this right. 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.”
These observations were made while acquitting a man convicted under the Protection of Children from Sexual Offences Act (POCSO Act) for raping a minor girl in 2016. Both the man and the girl claimed that they were in a consensual relationship. The girl also stated that under Muslim law, she was an adult due to her Nikah (marriage) with the accused.
The court highlighted the distinction between the age of consent and the age of marriage, noting that India has one of the highest ages of consent globally with 21 years for men and 18 years for women as per the Child Marriage Prohibition Act, 2006.
The court further remarked,
“It is high time that our country is also cognizant of happenings around the world…It is necessary that our country will have to look around and observe all that is happening around the world in this regard…Ultimately, it is for the Parliament to ponder upon the said issue, but being cognizant of the cases, which are coming before the Courts, with a huge chunk, being the romantic relationship.”
The court also pointed out the challenges faced in moderating youth’s behavior in the digital age, where adolescents have easy access to the internet, mobile, OTT platforms, movies, etc., which create a deep impact upon their minds, coupled with inquisitiveness about sex and may have both positive and negative influences.
The court observed,
“Adolescence is a period during which individual’s thought perception as well as response gets colored sexually. It is an age to explore and understand sexuality. Sexual curiosity in the adolescence often leads to exposure to pornography, indulgence in sexual activities, and also increase in the vulnerability for sexual abuse…easy accessibility of information made available and as Internet has become widely used resource for sexual information, especially amongst the adolescents…which may have positive as well as negative influences, upon the youth of today.”