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Bombay High Court: Criminalisation of consensual relations under POSCO Act has burdened courts

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Keywords: Bombay High Court, POSCO Act, Consensual Relation, IPC, Age of Consent Bombay High Court in its recent judgement named Ashik Ramjan Ansari vs. State of

Maharashtra and Anr. held that age of consent for sex under the Protection of Child from Sexual Offences Act (POCSO Act) and Indian Penal Code (IPC) should be re-examined since a large number of cases over burden courts in which involves a minor girl below the age of 18 years who have had consensual sex in a romantic relationship with a boy,

The court pointed out as in the eyes of law the Age of Consent is minimum 18 years so a boy

having a relationship with a girl below 18 years can be charged under POCSO Act if they both

have had consensual sex. Cases involving such incidents are overburdening the whole judicial

system, the court pointed out. “The criminalization of romantic relationship has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system and ultimately when the victim turns hostile by not supporting the charge against the accused, in the wake of the romantic relationship she shared with him, it can only result in an acquittal”, the 31-page order said.

The court held that while children are entitled to be protected from sexual violence, at the same time they should be able to freely express their choices without risking exposure to any harm or danger. According to the court, “the penal approach towards adolescents’ sexuality has impacted their life to a barrier-free access to sexual and reproductive health services”.

The court noted that in many cases, besides a clear stand is taken by the female partner that the sexual relationship is consensual, the male partner is convicted under POSCO Act.

The court also added that the age of consent needs to be differentiated from the age of marriage as sexual acts can also happenes outside the legal framwork of marriage.

In majority of countries, the age of consent is 14 to 16 years, the court observed. “Children in the age group of 14 are considered capable of giving consent to sex in countries like Germany, Italy, Portugal, Hungary etc. In London and Wales, the age of consent is 16. Among Asian countries, Japan has set the age of consent as 13. In Bangladesh, Section 9(1) of the Women and Child

Abuse Prevention Act, 2000 defines ‘rape’ as sexual intercourse with a woman, with or without her consent, when she is below 16 years of age. Similarly, in Sri Lanka, the age of consent is 16” the Court noted.

The court also referred to the remarks made by Madhya Pradesh High Court recommending the Central Government to reduce the Age of Consent to 16. Therefore, it asked the Parliament to debate on the issue. “It is necessary that our country will have to look around and observe all that is happening around the world in this regard, but one thing is sure that in this whole scenario, if a young boy is castigated for being guilty of committing the rape on a minor girl, merely because she is below 18, but an equal participant in the act, he would suffer a severe dent, which he will have to carry lifelong,” Justice Bharati Dangre, who was presiding over the judgement, said.

Written by Kartik Sharma, a student of National Law University, Shimla (first semester), an, intern under Legal Vidhiya

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