Introduction

• The problem of a lack of a borderline rule related to sexual intercourse with a child came to limelight when in July 2023 several High Courts quashed First Information Reports (FIRs) and pending criminal proceedings.
  • Also, acquitted accused persons under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Such decisions do not align with laws related to the consent of a child as the court allowed the defence of consensual intercourse with a child.
• The legislation does not give weight to a child’s consent as a child is termed to be incapable of understanding the consequences of such acts.

Some Verdicts of Courts in Conflict

• Kajendran v. Superintendent of Police and Others: On July 7, the Madras High Court quashed an FIR registered under POCSO and consequential criminal proceedings.
  • And further directed the Director General of Police to produce the reports of all such cases pending before the Court.
• Ashik Ramjan Ansari v. State of Maharashtra: On July 10, the Bombay High Court quashed the conviction of a 25-year-old man under POCSO on the grounds that he had consensual sex with the 17-year-old girl.
• Kailash Sharma v. State of Madhya Pradesh & Ors.: Madhya Pradesh High Court has quashed a rape case against a 30-year-old observing that a person in the age group of 17-18 would be capable of making conscious decisions regarding his or her well-being.

Laws Related to Child

• Section 2(d), Protection of Children from Sexual Offences (POCSO) Act, 2012: "child" means any person under the age of eighteen years.
• Section 4 of the POCSO Act covers a minimum imprisonment of 10 years for Penetrative Sexual Assault and Section 6 of the Act covers a minimum imprisonment of 20 years for Aggravated Penetrative Sexual Assault.
• Under Section 375 of the Indian Penal Code, 1860 (IPC), a sexual intercourse, whether with or without victim’s consent, is rape if she is under 18 years of age.
  • In the case of Independent Thought v. Union of India (2017), it was held that the sexual intercourse with a minor wife is rape.
• According to Section 90 of the IPC, a consent is not consent “unless the contrary appears from the context, if it is given by a person who is under 12 years”.
• Under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, if certain prohibited acts are committed with the knowledge of the caste of the victim, intention does not have to be proved separately.
  • The concept is covered under the act specifically to safeguard vulnerable groups.

Way Forward

• In analogy with the provisions of SC/ST Act, 1989, the child can also be considered as a part of a vulnerable group.
  • In this case consent will be immaterial if accused has the knowledge of the victim being a child.
• Quashing consensual sex with child cases is leading into fluctuations in the concept of consent of a child.
• The Supreme Court must step forward to maintain a bridge between the existing laws and the different interpretations by the High Courts.
• However, the age of consent can be reduced by keeping the best interest of the child into consideration and entrusting leverage to the judiciary to decide the understanding ability of the victim depending upon the facts of a case.