Jahanvi Agarwal
Justice Bharati Dangre expressed her concerns over the criminalization of romantic relationships between minors. Further, she stated that an innovative approach would provide them access to sexual and reproductive health services instead.
As consented sexual actions can occur outside of marriage, the Bombay High Court pronounced on Monday, July 10 2023 that the age of consent should be differentiated from the age of marriage.
It was noted by the court that:
“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 penal approach towards adolescents’ sexuality has impacted their life to a barrier free access to sexual and reproductive health services”
According to Justice Dangre, criminalizing romantic relationships has strained the legal system, taking up much time and money and eventually making the victim turns hostile. Judge emphasized the significance of establishing a balance between the protection of the most vulnerable class and those who are able to make their own decisions.
The observations were made by the court while discharging an individual who had been found guilty in 2016 of violating the Protection of Children from Sexual Offences Act (POCSO Act) by having sex with an underage girl. The 17-year-old girl and the then 25-year-old male claimed that the relationship was consensual. In addition, the girl claimed that she was legally married to the accused since she was an adult according to Islamic law.
Although the relationship was consensual, the trial court had noted that since a minor’s permission was irrelevant, the relationship would constitute rape because the girl was a few months away from becoming 18 at the time.
The court further remarked that:
“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 of the cases, which are coming before the Courts, with a huge chunk, being the romantic relationship.”
The High Court ruled that the conviction was incorrect since the evidence clearly demonstrated consensual sexual activity.
Furthermore, the court highlighted that India has one of the highest ages of consent globally while giving instances of different nations’ consent ages. Not only this but the court also stated that POCSO was intended to address sexual abuse and not criminalize consensual relationships between minors.
The current provisions fail to consider societal realities and assume that every sexual engagement with a minor, regardless of their capacity to be an equal participant, constitutes rape.
Case Name: Ashik Ramjan Ansari v. State of Maharashtra & Anr.
Diary Number: 1184/2019
Bench: Justice Bharati Dangre