Soulmate Gem
Soulmate Gem
Photo: Eman Genatilan
Under the Indian Penal Code, 1860 the age of consent was only for girls and was initially pegged at 10 years. This was raised to 12 in 1891, 14 in 1925, 16 in 1940 and 18 in 2013.
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Read More »Age of consent is defined as the age at which one is considered legally competent to consent for sexual activity. Owing to their immaturity of age and understanding, minors are considered incapable of understanding nature as well as consequences of their actions. Thus law forbids sexual activity with or among, children below a specified age. Under the Indian Penal Code, 1860 the age of consent was only for girls and was initially pegged at 10 years. This was raised to 12 in 1891, 14 in 1925, 16 in 1940 and 18 in 2013. Sexual activity with a girl below the prescribed statutory minimum age amounted to rape, irrespective of the girl’s consent. We did not have any age of consent for boys, and it was only in the 21st century that our lawmakers woke up to the possibility of sexual abuse of minor boys. In 2012 we got gender-neutral legislation for the protection of children against sexual offences. POCSO fixed the age of consent for both boys as well as girls at 18. Who decides the age of adulthood- Law, society, State or biological factors? In India, we have a different age of adulthood for different things. One is mature enough to take decisions regarding casting his vote at 18; drive at 16 (gearless vehicles) or 18 (motor vehicles); drink at 18, 21, 23, 25 (different states have fixed different age); adopt at 21; work at 14; and marry at 18 (for girls) and 21 for (boys). The earliest law that we had on this subject was the Majority Act, 1875 which fixed the age of majority at 18 years (amended in 1999). The Child Marriage Restraint Act, 1929 popularly known as the Sarda Act prescribed the age of marriage as 14 for girls and 18 for boys. This was later raised to 18 and 21 for girls and boys respectively in 1978. This has now been repealed and replaced by the Prohibition of Child Marriage Act, 2006. Article 16 of the Convention of Elimination of Discrimination against Women (CEDAW) deals with marriage and family. It says child marriages should not have legal effect. India signed CEDAW in 1980, still, child marriages are treated only as voidable and not void. Thus, till a child bride applies to get her marriage annulled, the marriage is deemed as perfectly valid. The husband gets the right to consummate his marriage, as the Indian Penal Code does not recognize marital rape. In 2017 this situation changed after the Supreme Court vide its judgment in the case of Independent Thought v. Union of India read down the exception to Section 375 that permitted men to consummate marriages with their brides between 15-18 years of age. Still, it is unfortunate that Indian wives do not have the liberty to exercise the option of consent. Below 18 the law doesn’t allow her to have sex even if she is lawfully married, and above 18 she cannot say no because there is a presumption of matrimonial consent. Under article 8 of the European Convention on Human Rights, the concept of the right of private life includes right to sexual life. But, this permits reasonable interferences or restrictions necessary in society such as protection of health, morals etc. Thus, modern States are justified in fixing age of consent and this age is to be determined, considering the physical, mental, emotional and psychological health of children. Another influencing factor is the socio-cultural milieu.
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Read More »It is convenient for adults to put curbs on teenage sexuality rather than deal with related issues. By criminalizing even consensual sexual activity we are denying them access to protective measures as well as safe medical procedures. Teenage girls turn to quacks for abortions and treatment of STD’s. A law prescribing age of consent cannot be discarded, but it needs to be understood in a manner that protects our children against abuse as well as unmindful prosecution. These laws should serve an educative purpose and provide reformative punishments. Criminalizing consensual sexual activities among children will have a negative impact. Can we treat them as juveniles in conflict with the law? Some states in the US have Romeo and Juliet laws that penalize sexual activity only where the age gap between consenting minors is more than 3 or 4 years. We also need to distinguish between cases where predators prey upon young children or those where people in authority exercise their influence upon those who are incapable of saying no to them; and those where children give in to their exploratory or experimental urges. Cases falling in the latter category cannot be equated with those falling in the former. It is our responsibility to protect our children not only from activities that could be unhealthy at their age but also from unnecessary prosecutions and punishments.
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