Daily Times

Recently, an Additional Sessions Judge (ASJ) in Delhi acquitted a 22-year-old man of kidnapping and raping a 15-year-old, whom he later married, observing, “Where a physical relationship that is not in the nature of an assault takes place with the minor girl’s consent and where the consent has not been obtained unlawfully, no offence can be said to have been committed.”

The Protection of Children from Sexual Offences Act 2012 (POCSO), in force in India, protects minors from having any kind of sexual relationship. Complying with the Constitution and legal obligations of the Convention on the Rights of the Child (CRC), the Preamble of the Act, among other things states: “to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental there to…it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child…it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child…the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent — (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; (c) the exploitative use of children in pornographic performances and materials; And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.”

As per newspaper reports, the ASJ in the above case during adjudication rejected the argument that sexual activity/relationships with or by minors (defined as persons under 18 years of age) was prohibited and went on to observe: “I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the state and no individual below 18 years can be allowed to have pleasures associated with one’s body.” The court ruled that since the 15-year-old girl had accompanied the 22-year-old man voluntarily, with her free will and consent, no offence had been committed under the Indian Penal Code (IPC) or the POCSO. The minor was neither kidnapped nor induced to compel her for marriage or raped. The court while urging the government and civil society to spread awareness about safe sex and early marriage, said that sending the minor’s husband to jail would be fruitless and an obstacle in their matrimonial life.

According to a report published in The Guardian in August this year, a judge in Montana, USA, apologised for the comments he made while adjudicating on a case of rape of a 14-year-old minor girl who was raped by her teacher. The judge was reported as saying that the minor victim was “older than her chronological age” and had as much control of the situation as the teacher who raped her. The teacher was charged with three counts of sexual intercourse without consent in 2008; the minor victim killed herself in 2010 during the pendency of the case, when she was 16 years old. A minor under 16 years of age cannot consent to sexual intercourse under Montana State law. The Guardian reported: “District judge G Todd Baugh made the comments on Monday, while sentencing former Billings Senior High School teacher Stacey Rambold to a 15-year prison sentence, then suspending all but 31 days and giving him credit for one day already served. The sentencing came after Rambold, 54, had left a sexual offender treatment programme that was part of a deal to have his prosecution deferred. The judge said he wasn’t convinced that the reasons for Rambold’s move were serious enough to warrant the 10-year prison term recommended by prosecutors.”

Pakistan has had its own fair share of cases like the ones cited above. Among others, one reported this year in the law journals is one where a father filed for recovery of his minor daughter, alleging that she was being subjected to rape as being a minor she could not have consented to marriage or sexual intercourse. The ossification test ordered by the High Court revealed that the girl was a 14-year-old minor; however the medico-legal certificate stated that her secondary sexual characteristics were developed. The court held that the “marriage of a Muslim girl, she may be below the age of sixteen years who has otherwise attained puberty and is also a consenting party to the marriage and there being no factor whatsoever to disbelieve the said factual position is valid for all intents and purposes.” Adjudicating on the point whether the minor had been raped the court held: “Although section 375(v), P.P.C. provides that: in case of sexual intercourse of a man, with a girl under the age of 16 would amount to rape, whether such act is committed with, or without the consent of such girl, but I am afraid this section, cannot be made applicable to the case where a girl, though under the age of 16 years, in explicit terms admits to have entered into marriage, as is the case in hand.”

I wonder why we even bother to have laws. There is a law in Pakistan that says that the minimum age for the purposes of marriage is 16 years for a girl; even otherwise, Islam requires the consent of a ‘wali’ for a minor’s marriage. There is a law that says that regardless of consent of a girl under 16 years for sexual intercourse it will be an offence of rape. The State in view of the differing opinions on the age of puberty among different sects fixed the age of majority at 18 — the exception being the age for marriage. Neither of these laws has been struck down by the courts. In a country where one cannot get a driver’s licence until 18 years of age and can neither have an independent bank account or exercise control over property or smoke or vote — which by the look at the prevailing situation and available options is not that tough an exercise — one is supposed to believe that minor girls are able to give free consent to indulge in an exercise that entails firstly running away from home, and secondly, giving free consent to an act that at that particular age may be life threatening?

One could argue, given the cultural setup in our country, the stigma involved with running away from home, no shelter or support system is left for a girl as there is no way back or acceptance into the society, but times are changing. Awareness needs to be spread; minors cannot give consent, which is an act of reason accompanied with deliberation, the mind weighing, as in balance, the good and evil on each side. Any person inducing or seducing them or luring or enticing them to consent to an act that they are not mentally and intellectually mature enough to understand — regardless of how physically developed or mature their body may be — deserves to be punished.

A court in England held that the purpose of the legislation is to protect children from themselves, as well as from others minded to prey on them. When will our courts draw the line?

The writer is an advocate of the High Court