"A minor girl can be easily lured into giving consent for sexual intercourse since she does not have the capacity to understand the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action."
While denying pre-arrest bail of a person accused of committing offence under POCSO Act, the High Court of Kerala reiterated the legal position that consent given by a minor girl for the sexual act is of no legal validity. The accused person contended that the girl was living with him on her own wish and that they engaged in sexual performance with mutual consent. The girl was found missing from the home, and on enquiries, she was found to be in house of the accused person, a 32-year-old man. When the girl stated that he had sexual intercourse with her on promise of marriage, the offences punishable under Sections 363 and 376 of IPC and Sections 5(l) read with Section 6 of the POCSO were incorporated in the FIR.
Justice Narayana Pisharody, while dismissing the application for anticipatory bail filed under Section 438 of Cr.P.C, held : "Even when there is consent of a girl below 18 years, the other partner in the sexual act is treated as a criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual."
The Court stated that the age of consent for sexual act was 18 years, and there was no question of a girl below 18 years giving consent. Tracing the legislative wisdom behind the provision, the Court observed :
The very purpose of bringing a legislation in the form of the Act is to protect the children from sexual assault, harassment and exploitation, and to secure their best interest. Dignity of the child has been laid immense emphasis in the scheme of the legislation. The Act contains special provisions for protection of children, with a view to ensure that children of tender age are not abused during their childhood and youth.
Explaining that the consent given by a minor cannot be treated as valid consent, the Court stated :
A mere act of submission does not involve consent. If there was no voluntary participation in the sexual act, it would not amount to consent. Voluntary participation involves the exercise of intelligence based on the knowledge of its significance and moral quality of the act. Consent cannot be equated to inability to resist or helplessness. Consent is an act of reason accompanied by deliberation. A minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. A minor girl can be easily lured into giving consent for sexual intercourse since she does not have the capacity to understand the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 18 years of age
The Court also noted that in Independent Thought v. Union of India, the Supreme Court has interpreted Exception 2 of Section 375 IPC to hold that sex with one's own wife will amount to rape if she is aged below 18. Therefore, offence under Section 376 IPC was also found to be prima facie made out against the accused.
Reference was made to SC decision in State of Bihar v. Rajballav Prasad where the bail granted to an accused under POCSO was set aside by SC holding that as per Section 29 of the Act there was no presumption of innocence available to the accused