Consent At Crossroads: Sexual Autonomy, Minor Girls And Age Of Consent In Indian Criminal Law

The 22nd Law Commission of India in its 283rd report offered its recommendation with regard to the age of consent for the sexual activities with an aim to revisit the question of sexual autonomy of minor girls. The question arose before the Law Commission after the Karnataka and Madhya Pradesh High Court of India referred the matter of several cases being reported by the families of the minor girls which eventually led to the revelation that the said girl was consensually involved in the sexual relationship. The Commission's report extensively discussed the history, judgements and various empirical studies on the question of age of consent, however, did not come up with any recommendation with regard to the decriminalization of consensual relationships wherein a minor girl is involved. This again brings us to the question that the increased prosecution against the men in such relationships refutes the principles of fairness and justice.The Bombay High Court in February 2025 in the order titled Vijay Chand Dubey vs. State of Maharashtra and another [Criminal Bail application No. 551 of 2019] allowed the bail application of the accused for the offences of kidnapping and rape of a minor girl under Sections 363, 376 of the Indian Penal Code,1860 read with sections 4 and 8 of the Protection of Children from Sexual Offences Act (POCSO) 2012. The applicant in the said case was arrested in the year 2019 and had been in the judicial custody for 5 years 2 months and 23 days. The victim, a 14-year-old girl (at the time of the the time of the offense) in her statement prima facie showcased the variance with respect to the statement given by her father (who is the informant in the said case). The bail was granted to the applicant on the ground that the victim and the accused were known to each other for 2 years and had developed a love relationship. The victim's statement reflected some key findings which depicted her love for the applicant and her consent to leave her parents house without informing them for 3 days and 3 nights. She also confessed that there was a consensual encounter between them. While granting the bail the Court held that a reading of the FIR prima facie exhibits that the father of the victim was aware about his daughter's relationship with the applicant.

In a similar set of events, the Nagpur Bench also in the early 2025 granted bail to the applicant/accused of the offences under Sections 363, 376, 376(2)(n) of the Indian Penal Code read with Sections 4, 6 and 17 of the POCSO. In Nitin Damodar Dhaberao vs. State of Maharashtra, through the Police station officer of police station, Anjangaon Surji, District Amravati and another [Criminal Bail Application No. 718 of 2023] the FIR was again lodged by the father of the victim who was 13 years old at the time of the alleged crime. The applicant was arrested on 30^th August, 2020 and had been in judicial custody since then. The first information given by the father revealed that the girl had left the house on the pretext of getting a book but did not return back for a very long time. After conducting a futile search for his daughter, the father lodged a missing report, and the police eventually traced the girl and her statement was recorded. The victim stated that she knew the applicant and had left her home on her own accord and joined the company of the applicant. She also mentioned that though they had stayed at various places the applicant had not once subjected her to forceful sexual intercourse. There was no physical relationship between them and the medical report also ruled out any external injuries. The state opposed the said bail application on the ground that since the victim is below the age of 18 years, her consent becomes irrelevant. The Court however, while granting the bail observed that the statement recorded depicts clearly that the victim had left the house of her parents on her own accord and had also admitted her love relationship with the applicant. The court further observed: “… It seems that the alleged incident of sexual relationship is out of attraction between the two young persons and it is not the case that the applicant has subjected the victim to a sexual assault out of lust.”

The above mentioned two bail orders are amongst many orders which have raised a big question on the relevance of “consent” of minor girls involved in romantic love affairs who consensually enter into sexual acts, but it leads to lodging of the FIR's against the males (whether adult or minor) by the families of the girls. The penal laws make the consent of the minor girls immaterial despite the fact that the relationship is consensual. This depicts that by criminalizing the man involved in a consensual relationship with a minor girl has to bear the brunt which eventually leads to denial of bail since rape of a minor girl is a grave offense. The objective of POCSO Act or the rape laws in case of minors is to eliminate the rise of child sexual abuse, however where the minor girl is consensually involved it leads to the violation of the principles of equity and justice for the man who is put behind the bars. Until the relevant amendments are made the role of the Courts becomes imperative which involves harbouring the responsibility of interpreting the law purposefully. In Shri Silvestar Khonglah & another vs. State of Meghalaya & another [Crl.Pet.No. 45 of 2022] the high court recognised the relationship between the young adolescents considering mutual love and affection and eventually granted bail to the boy who was accused of rape. The Courts have definitely not accepted the consent given by the minor girls as valid consent but have now started taking cognisance of the fact that the consensual relationships born out of mutual love and affection must not lead to criminalisation of the man involved. The Madras High Court also in Vijaylaskshmi vs. State [Crl.O.P.No. 232 of 2021] opined that POCSO Act was enacted with the aim to protect and render justice to victims and survivors of child abuse and not to be employed as a tool to abuse the process of law. It was never the objective of the Act to punish the man or adolescent boy involved in a consensual relationship with a minor girl.

In the present times where social media plays an extensive role in the daily lives of the teenagers it is not too surprising that they get into consensual relationships over a couple of messages and video calls. The sexual curiosity leads them to enter into activities which are consensual. However, when the parents or guardians of the minor girl are apprised of the relationship, they are quick to register the FIR for an offense as grave as rape, kidnapping and sexual abuse. This in a way defeats the purpose of the penal laws which were created with the objective of criminalizing the sexual acts against the minors and not to criminalize the man involved in a consensual relationship. The age of consent fundamentally exists to safeguard the minors from exploitation since adverse consequences may ensue when individuals engage in sexual activities without understanding that the acts require maturity and not just mere willingness. The way forward to realize the real objective of the POCSO Act and rape laws is to revisit the age of consent and create a harmonious construction between the laws for sexual offences against the minors and the sexual autonomy of the minor girls. If the same is not done, we shall continue to read innumerable incidents wherein the man despite being in a consensual relationship continues to linger in the jail and will be a subject of social stigma for years to come. Recently Senior Advocate Indira Jaising acting as Amicus Curiae in the ongoing case titled Nipun Saxena and another vs. Union of India submitted before the honorable Supreme Court that the age of consent of minor girls with regard to sexual acts must be reduced from 18 years to 16 years. The Supreme Court is reviewing written submissions with hearings to resume in August 2025.

There is also a need to apprise and educate the minors about the concept of “informed consent”, boundaries and rights so that they are enabled to distinguish between mutual adolescent relationships and harmful coercive dynamics. Moreover, there is a need to provide access to youth friendly health and counseling services in schools where they are allowed not only to talk about their relationships but are also taught about how to make safer and informed choices. The goal is not to suppress the natural developmental curiosity in the minors but to create a balance between penalizing the sexual offences against minor girls and rights of the males involved in the consensual relationship with minor girls. As Indira Jaising in her written arguments submitted that POCSO Act in its present form disproportionately penalises the adolescents in consensual sexual relationships. She further emphasised on the right to privacy, dignity and autonomy of the minor girls in the matters of sexual relationships. As the Supreme Court of India had in the case titled State of Maharashtra v. Madhukar Narayan Mardikar [AIR 1991 SC 207] held that every woman is entitled to sexual privacy. It must be remembered that revisiting the age of sexual consent is not about promoting adolescent sex or abuse by the adult males but is rather about aligning the laws with the ground realities and affording protection to the males in the consensual relationships who over time themselves become the victims. Reforms which are nuanced, child-sensitive but also promotes fairness must be brought in so that a clear demarcation may be made between consensual sexual intercourse and child sexual abuse.

The author is an Assistant Professor of Law at University Institute of Legal Studies (UILS), Panjab University, Chandigarh. Views are personal.