Childhood can be described as that period of human existence, where one experiences the world, as magical realism, not because the fantastical is narrated as the ordinary, like in books, but because the ordinary is experienced as fantastical in life. However, the lack of experience and knowledge that makes every new experience seem like magic, also makes children vulnerable to bad things, bad people, and bad consequences. Therefore, the law has created separate categories for children both as victims and as perpetrators of offences.
Medical science defines childhood by different stages of development and 'The Indian Penal Code' carries no definition of a child. What was recognised in criminal law was the mental capacity to commit a crime. Children under 7 having no capacity (doli incapax) and those between 7 and 12 having some capacity. As victims, specifically of sexual offences, social morality rather than any rational basis played a significant role in determining the age of consent for the girl child at 16, coinciding with puberty in the Victorian period. Any sexual intercourse with a girl below 16 was considered statutory rape under Penal Law. The fact that this age had no connection with child psychology or physiology is apparent from the fact that it did not apply to boys. Sexual intercourse by a women with a boy of any age, irrespective of his consent was not penalised.
It is only with the enactment of the Protection of Children from Sexual Offences Act , 2012 which defines a child as any person below the age of eighteen years that the age of consent to have sexual relations for both boys and girls was set at 18. The IPC was accordingly duly amended. Both the POCSO Act and the Indian Penal Code, fix the age of consent of a child to have sexual intercourse at 18, thus clubbing infants and post puberty young adults all in the same category as children, without any consideration or legislative recognition of their stages of development, needs and capacities. Unfortunately, the amendments though ostensibly to protect children have resulted in making children criminals for responding to their age appropriate and natural bodily urges and have reduced them to being prisoners of social morality, in instances where they choose sexual partners that their parents disapprove of.
The biological definition of children used by paediatricians and psychologists defines children based on their stage of development from infancy to puberty and recognises that in all these stages there are different, physical, psychological, and biological capacities, and needs. There is no fixed age but more like developmental stages that define a child's maturity and ability to understand things and make choices. Some Child, based on his/ her up brining , circumstances may achieve a high level of maturity and self-preservation, while others may remain naïve or vulnerable far beyond the age of 18.
The United Nations Convention on the Rights of Children (CRC) 1989 recognises the capacity of those under 18 to have views and to express views and a right for those views to be heard. It provides that a child if capable of forming its own views has the right to express them freely. This right includes the opportunity to be heard in any judicial and administrative proceeding that concern them, either directly or through a representative according to the national Law. No age is set at which a child becomes capable of expressing views but what is recognised is that a child wishes and views must be heard in determining his welfare or matters pertaining to him.
The concept of children expressing their wishes or choices, is not alien to law. In matters of custody and Guardianship, where the court both under statute and judge made, law is obliged to take into consideration the wishes of a child after determining that the child is of an intelligible age and is intelligent. While there is no fixed age, courts generally give weight to the wishes of children around 9 years or older. Though the court is not obliged to decide in accordance with the wishes of the chid and can determine the welfare based on other circumstances, the idea that a child, of a certain age is in fact mature and can express a choice based on his best interest has been accepted both by statute and by courts.
Even the Juvenile Justice Act has been amended to include Section 15, whereby children in conflict with law who are above 16 but below 18 are assessed for their physical, emotional and mental capacity to understand the consequences of their actions and if it is found that they were capable, the law permits them to be tried as adults. Thus acknowledging that merely because a child is under the age of 18, to presume such child is not capable of making an informed choice or conscious decision is wrong has been accepted both by the legislature and by the courts in matters where children are in conflict with law.
Yet when it comes to engaging in sexual intercourse, the law has set a rigid age of 18 as the age of consent. And irrespective of the wishes, level of maturity or circumstances of a child, often disregarding their expressed views, sexual intercourse with someone below the age of 18 is considered statutory rape and carries a minimum punishment of 10 years to life.
Many such cases have come before courts, where a young couple, where the girls is below 18 and the boy is either just above 18 or in their 20s have eloped and on the complaint of the girls parents the law is set into motion, arresting the boy and leaving the girl with no option but the return to her home or live in a state institution. Often these young girls are pregnant and they are either left with no option but to abort the foetus or give the baby up for adoption. The Court is neither allowed, to sift the circumstances in which the girl left her home nor let her have a voice or say in her welfare.
Faced with similar circumstances in the matter of Fija Vs State of NCT of Delhi 2022 SCC online Del 2527, the Hon'ble Delhi High Court held that a minor girl who had attained the age of puberty can wilfully marry without consent of her parents. Taking note that personal law set the age of marriage at puberty. The essence of the judgment is to place the welfare of the child at the centre of the case rather then the letter of the law. The spirit of the POCSO Act is to protect vulnerable children from sexual exploitation by older people, its intent was not to criminalise teenage sex or unions that children make to escape from violence at home. Several High Courts and the Supreme Court have taken note of the circumstances, maturity and wishes of under 18 girls and quashed cases of statutory rape, finding that proceeding with the matter would not be in the welfare of the minor it seeks to protect.
One can only be grateful for the progressive and feminist jurisprudence evolved by the Constitutional Courts in India. By intuitively utilising the dual test of wishes and welfare. Young women desire sex as much as their male counter parts, yet because the consequences both social and biological upon women are quite different to that on men, for the same desires and same sexual choices, the court has therefore protected women and their male partners where both wishes and welfare coincide and where it was felt that the consent is not coerced or manipulated against the welfare of a young women under 18.
Many formulas have been suggested for resolving the social injustice caused by the age of consent for sexual relations being raised to 18, some have suggested, that the age be brought back to 16, some have suggested a 2 to 5 years age gap between the girl and the boy, be exempted from the rigours of Statutory rape. In my view, no rigid formula should be created, as each case has unique facts and circumstances and each case ought to be determined on the twin test of welfare and wishes of the minor, subject to the minor being above the age of 12. This would give the court the flexibility to respect and protect adolescent choices, while penalising exploitation of vulnerable children.
Author is Senior Advocate, Supreme Court of India
Views Are Personal.