'16-Year-Old Boy Can't Have Sex But Can Rape'- Need For Romeo–Juliet Clause In POCSO

This is not a dialogue but harsh reality of our Indian legal system which fails to change itself as per the evolving society. The Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted with a positive intent to address a serious and pervasive problem: sexual abuse of children in India. The law adopts a strict, child-centric framework by criminalising all sexual activity involving persons below the age of 18, irrespective of consent. While this approach was intended to ensure maximum protection, empirical data, judicial observations, and ground-level implementation reveal that the law, in its present form, also produces outcomes that were never intended by the legislature.

While the law's intent to protect children from sexual abuse is unquestionable, its absolute approach creates an unintended consequence: consensual teenage relationships are criminalized in the same framework as predatory abuse. This has given rise to a legal paradox where a minor is deemed incapable of giving consent but is simultaneously held criminally liable for committing serious sexual offences.

POCSO defines a “child” as any person below 18 years of age and under Section 3 (penetrative sexual assault) and Section 5 (aggravated penetrative sexual assault), criminalizes all sexual activity involving persons under 18 years, with no exception for consensual activity between minors. Section 29 creates a presumption of lack of consent, and Section 42A (inserted in 2019) makes the Act's provisions override all other laws. The law makes no distinction between a 40-year-old exploiting a child and two teenagers in a consensual relationship.

The age of consent was raised from 16 to 18 years through the Criminal Law (Amendment) Act, 2013, following the Nirbhaya case. While this was done with protective intent, the Law Commission of India in its 227th Report (2009) had actually recommended retaining 16 as the age of consent, noting that “criminalization of all sexual activity involving persons under 18 may not be a desirable legislative policy.” The irony is sharp. The same boy who is deemed incapable of giving or receiving valid consent is considered capable of committing a grave sexual offence carrying severe punishment. The law assumes criminal intent where there may be none, and exploitation where there may be mutual affection. Even the Apex court has clearly held that autonomy of sexual relationship is a fundamental right in case of Navtej Singh Johar V Union of India, and to punish someone jus because they had a consensual sexual relationship is unconstitutional.

Due to strict nature of law, family members of the minor girl sometimes invoke POCSO strategically, using the law against the boy rather than to address genuine exploitation. Society fails to accept the relation born out of adolescence and treat it like a criminal offence. Even though both the partners were in close proximity of age and are consensually involved but law does not talk about the such type of relationship and ultimately boy have to face criminal charges not because he has done something wrong as per the law but just because society does not find it appropriate by their own social standards.

Indian courts have repeatedly acknowledged the unintended consequences of POCSO's absolute criminalisation. In Vijayalakshmi v. State (Madras High Court, 2021), the court noted that consensual sexual relationships between adolescents are being prosecuted under POCSO, even when the facts do not indicate exploitation or abuse. The court emphasised the need for legislative reconsideration to prevent misuse of the law. Similarly, in Sabari v. Inspector of Police (Madras High Court, 2019), court noted that

“Cases are coming where boy and girl are studying in the same class and they developed love and they had sexual relationship... the boy is being branded as a rapist.”

The court recommended legislative amendment to address peer relationships.

In a very recent judgement of State of Uttar Pradesh v Anurudh Kumar & Ors. The Supreme Court also highlighted the need of this correction in POCSO. Court observed that genuine adolescent relationships were being unnecessarily drawn into the criminal justice system due to the rigid statutory framework. Apex Court also ask union to make necessary amendments to address the gap.

The Legal Inconsistency: Capacity to Consent vs Capacity to Commit Crime

A core inconsistency lies at the heart of POCSO's application. The law under POCSO presumes that a person below 18 lacks the capacity to consent to sexual activity. At the same time in Bhartiya Nyaya Sanhita , it presumes that the same person may has the requisite mens rea to commit serious sexual offences carrying punishments extending to life imprisonment and should be treated like an adult not juvenile.

This contradiction becomes especially stark when a 16- or 17-year-old boy is prosecuted for penetrative sexual assault against a consenting partner of similar age. The law strips both adolescents of agency, casting one as a victim and the other as a criminal, regardless of the factual context. The rigid application of POCSO raises concerns under Articles 14 and 21 of the Constitution of India. Criminalising consensual relationships between adolescents can infringe upon the rights to personal liberty, dignity, and privacy, particularly after the recognition of decisional autonomy in matters of personal relationships.

International Practice and the Romeo–Juliet Clause

Several jurisdictions have addressed this issue through the adoption of a Romeo–Juliet clause, which provides a close-in-age exemption for consensual sexual acts between adolescents.

Such clauses do not legalise child sexual abuse. Instead, they draw a clear distinction between exploitative conduct and peer relationships, typically allowing consensual activity where:

• Both parties are minors, and
• The age difference falls within a narrowly defined range.

International child protection frameworks increasingly recognise that blanket criminalisation of adolescent sexuality is neither effective nor rights-respecting.

POCSO remains a crucial statute in India's fight against a serious problem of child sexual abuse. However, empirical data and judicial experience demonstrate that its absolutist approach has resulted in the criminalisation of adolescent consensual relationships. The statement that a 16-year-old cannot legally have sex but can be prosecuted for rape reflects a real and pressing legal inconsistency.

Constructive criticism of POCSO demands legislative introspection, not dilution. A carefully drafted Romeo–Juliet clause would ensure that the law protects children from harm without punishing adolescence itself. Refinement, not rigidity, is essential if POCSO is to remain a law that delivers justice rather than unintended injustice. Legislature also has to consider the autonomy of adults in their personal life, a blanket categorisation of adult as criminal is not appropriate.

Views are personal.