Written By: Rushank Shah.
Edited By: Maryam Sana.
Introduction
When it comes to sexual relations, consent is one of the essential determinants of whether there has been an offense of rape or not. But what is consent according to Indian Law? According to the laws, consent refers to the willingness to carry out an act or abstain from it. However, not every individual is eligible to impart expressions of consent. Then the question arises: which individuals are eligible or qualified to voice their consent and what conditions need to be met to express a legally valid ‘consent.’
Consensual sex is one of the basic rights of an individual included as a right under The Constitution’s Article 21’s Right to Life itself. However, this right has a specific procedure and restrictions like all rights. This article aims to answer who is entitled to have sexual relations and whom. As repressive as this may sound, the truth is far from what it looks like; hence these restrictions are not for the sake of discrimination but to protect children from having unregulated sexual encounters, where they face a high chance of being manipulated or being coerced into a sexual relationship which would be derogative to their health, both physical and mental.
This brings us to the concept of statutory rape. This offense refers to sexual intercourse with a child below 18 years of age, where the individual’s consent is immaterial. This article purports to distinguish what extent statutory rape is justified and to what time it limits people’s rights to have consensual sex. It will draw exhaustive discussion on the legal status of statutory rape in India compared to other countries and the different situations that might attract the Law dealing with statutory rape.
Consent defined under the Indian Penal Code
As given in Merriam Webster, consent means ‘the act of giving assent or approval‘ or the “compliance in or approval of what is done or proposed by others.” This meaning is incomplete in the eyes of the law due to ambiguity; therefore, the Indian legal system has put in place some determining mechanisms to lay down the conditions required to constitute consent.
Section 90 of the Indian Penal Code (IPC) stands as…
“A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” [1]
This consent defines what kind of consent is not consent under the usual procedure of the law. However, it should be noted that this section demarcates consent for the act of bearing grievous hurt and not for any sexual act. For the latter act, consent is not defined directly per se, although Section 375 of the IPC does define the act of rape. It states as follows:
“A man is said to commit ‘rape’… under the circumstances falling under any of the following seven descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent.”[2]
This part of the section states the situations under which any act that extends to sexual intercourse with a woman amounts to rape. Of these, the sixth situation brings our crux of discussion to our attention. It implies that no person can have sexual intercourse with a girl below eighteen years of age, regardless of her consent. Taking exception 2 of the section into consideration, if the girl is married to the accused, the age of consent is reduced to fifteen years. That means that a man can have intercourse with his wife provided she is above fifteen years of age.
Statutory rape and what it means
Statutory rape refers to establishing a sexual relationship where either one of the individuals is a minor or both. In the case of Sabrinathan[3], the Madras High Court held that the accused could not be arrested based on committing statutory rape because both the accused and the victim were of the same age, and there were no implications to indicate that the accused had forced the victim in any way. Here, the court made it clear that although there were no official Romeo and Juliet laws in India, the judiciary could not hold two innocent teenagers, who were exploring their desires, liable for statutory rape. Instead, it was its duty to make the teenagers more aware of their actions and the statutes that they could attract through their actions. Thus, the decision taken by the Sessions Court was overturned, and the accused was therefore released.
In another case, State of Himachal Pradesh vs. Mango Ram[4], it was alleged that the accused had carried out a sexual act with the prosecutrix, who was his cousin. Although the Trials Court had held that the accused was guilty, a review plea in the higher court brought out a different judgment. The court took into consideration the discrepancies that had been overlooked by the Trials Court and adjudged that there was merely a gap of two to three years between the ages of the accused and the prosecutrix. Thus, it was more important to let these events be a learning lesson rather than a chance of retribution. It held that in the present matter, both of the individuals( accused aged 17 years and the prosecutrix 13 years) were minors and thus did not have enough knowledge about their actions and their consequences. Moreover, there was no evidence to prove that the prosecutrix had been forced upon, neither were there any physical injuries on the victim’s body.
In both of these cases, we saw those cases where both parties were minors; the Law held those occurrences more lenient to prevent illegal persecution of the accused. However, this stand cannot be kept for all cases. In the Nirbhaya rape case[5], the court saw that one of the accused in the offense was a minor, where he had allegedly engaged in the most grievous act of penetrating the victim’s private parts with an iron rod. Although the Juvenile Justice Board did not try the juvenile as an adult claiming the allegations as a ‘media hype,’ it did lead to amendments in the Juvenile Justice Act, 2015 where it was now held that juveniles between the age of 16 and 18 years involved in heinous crimes could be tried as an adult.
In the offense of rape, consent plays a massive role in determining the severity of the crime. This stands true for statutory rape too. If the offense is carried out like in the first two cases, then it can be safely said that such crimes will mostly lead to acquittals of the accused where both of the individuals involved are close in age. This is because of the perception that such acts are carried out in innocence and out of curiosity rather than malicious intent.
We have discussed cases where both the accused and the victim were minors or close to each other concerning age and relation. However, we didn’t discuss what happens when an adult gets involved with a minor in any sexual act. ‘In the case of Harpal Singh, the victim had invited the accused to engage in the sexual act with her. But it was still held that the accused had committed an offense because the consent of the prosecutrix was not valid. After all, she was a minor at the time of the particular act.’[6]
Extra Note- In countries like US and Canada, where two minors get involved in a sexual relationship with each other, and the difference in their ages is not more than a few years, such couples are protected under ‘Romeo and Juliet’ laws. In most states in the US, where the laws are actively upheld, this difference cannot be more than three years.
Conclusion
We learned about the offense of rape with and without the consent of the minor involved in the act. India doesn’t yet have a distinction as to cases where two minors get engaged with each other. However, it is a sign of progress that the courts have usually taken a lenient stand in such cases. It is still held that statutory rape is an offense under the Indian Penal Code’s Section 375 that defines rape and under Indian Law in general. Although statutory rape does not have an explicit definition under Indian Law, it does have rules to prevent teenagers from being manipulated by grown-ups. It is valid to hold consent given by teenagers as invalid because of their immaturity and lack of insight to understand the consequences.
[1] Indian Penal Code, 1860, § 90, Act no. 45 of 1860, Acts of Parliament, 1860, (India)
[2] Indian Penal Code, 1860, § 375, Act no. 45 of 1860, Acts of Parliament, 1860, (India)
[3] Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors., Criminal Appeal No.490 of 2018 (Mad. H.C.) (India).
[4] State of Himachal Pradesh vs. Mango Ram, https://indiankanoon.org/doc/1040991/ , (8-10-2021, 7:03 pm)
[5] Mukesh & Anr vs State For Nct Of Delhi & Ors., Criminal Appeal Nos. 607-608 of 2017
[6] Saumya Singh Chouhan, Section 375: Analysis of Provisions Relating to Rape, Lawctopus.com, (8-10-2021, 10:27 pm), https://www.lawctopus.com/academike/section-375-analysis-of-provisions-relating-to-rape/#_edn21