When people hear cases under Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the confusion that arises is: “Can a minor legally give consent to a relationship, and will the law still treat it as an offence?”
This confusion is very much in common.
Understanding as to what the law actually says on minor consent, when the POCSO Act applies, as well as why the law treats such types of situations strictly that can help the individuals avoid any serious legal consequences and misunderstandings.
What the POCSO Act Is and What It Is Not
The Protection of Children against Sexual Offences Act (POCSO) 2012 acts as specialized legislation which protects Indian children from sexual abuse and exploitation through its provisions.
Most people do not understand that a minor’s agreement to start a romantic relationship with another person creates an automatic offense according to the law. The misconception exists without any legal foundation.
With the POCSO Act, it does not matter if the minor consented to the activity; it will always be determined based on age (of consent).
According to the POCSO legislation, anyone below eighteen years old will always be considered a “child” for legal purposes, and therefore cannot legally consent to engage in sexual activity.
What Minor Consent Really Means in Legal Practice
The law considers any consent which a minor provides to be invalid.
The law does not recognize any consent which a minor gives to be legally valid according to statutory requirements.
Young people and children can experience psychological and emotional vulnerability because their ability to understand long-term consequences of their decisions remains incomplete.
The law establishes that adults and older persons who engage in sexual activities with individuals under 18 years of age must maintain complete control over their actions.
Therefore, any sexual act or acts that occur with a minor are e.g. offences and are treated as having occurred even if they consented to the act.
Is Minor Consent Legally Valid in India?
The legal response to this particular issue exists in a state of complete certainty. Indian law treats minors as people who lack the ability to give legal approval for sexual relations.
The Criminal Law of India treats all individuals below 18 years of age as minors which results in prosecutors using The Protection of Children from Sexual Offences (POCSO) Act to charge anyone who engages in sexual activity with a minor.
An adult who engages in sexual activity with a minor will face criminal charges even if the minor tells police that they gave ‘consent’ to the sexual encounter.
The strict application of this law is to protect children, not to assist a minor in claiming that they gave their consent to someone.
Legally, this does create difficulties because many minors may be engaged with one another in romantic relationships. However, from a legal standpoint, it does not affect the statute’s application in these situations.
Key Legal Provisions Under the POCSO Act
POCSO is a Law that has several offences relating to Sexual Conduct with children;
Section 3 – Penetrative Sexual assault:
This section states that if any sexual act entails penetrative act (vaginal, oral, urethral or anal penetration of a child), it is a criminal offence even if the child consents to it;
Section 4 – Punishment for Penetrative Sexual Assault:
The punishment under this section carries a punishment of minimum of 10 years’ imprisonment up to life sentence along with a fine;
Section 5 – Aggravated Penetrative Sexual Assault:
This section particularly refers to more serious offence that is committed by someone in the position of trust over a child (i.e. the teacher, police officer, guardian, etc.);
Section 6 – Punishment for Aggravated Offences:
For aggravated offences, the punishment will range from a term of 20 years to life sentence of rigorous imprisonment; and
Sections 7 & 8 – Sexual Assaults:
These sections will provide that any type of non-penetrative sexual acts done with intent to gain sexual pleasure are criminal offences;
Important Court Decisions on Minor Consent
The courts in India have stated that if an individual accepts minor consent, it does not qualify as a legal form of defence. Minors cannot legally provide consent because sexual intercourse with a wife under the age of 18 is considered to be committed through the act of rape per the Supreme Court ruling in Independent Thought v Union of India (2017).
Similarly, courts across the High Courts have also stated that the majority of POCSO cases stem from teenagers engaging in consensual relationships; however, the courts have taken the position that if Parliament has not passed legislation changing the manner in which POCSO is interpreted, the law will continue to be applied to cases involving minors.
The above referenced decisions from the Indian courts could indicate that when cases involving minors are concerned, the courts take an extremely strict approach.
Why the Law Ignores Minor Consent
The principal rationale for disregarding minor consent for protection of the child. The legislature presumes that minors lack:
- Emotional maturity
- Insight into the implications of their sexual behaviour
- Ability to be manipulated or coerced by an adult
- A requirement for special protection under the law.
Therefore, the law does not acknowledge that the child can give consent. The onus is on adults to make sure they do not do anything that could injure or can exploit the minor.
Legal Consequences of a POCSO Case
The POCSO Act can carry serious consequences for a person accused under it.
There are several consequences that can result from being accused under this Act, namely:
- Arrest and criminal investigation
- Possible extended time of imprisonment if convicted
- A special court established under POCSO to conduct all trials
- Harm to reputation and social stigmas
- Extended expectations of legal proceedings
There are also special procedures under the law that provide for the recording of the child’s statement and trial in an environment friendly for children.
Due to the severity of these offenses, courts handle POCSO cases in an expedited manner.
Practical Situations Where POCSO Cases Arise
In reality, several different POCSO cases happen as a result of things like:
- Teenage romantic relationships
- Elopement involving minors
- A parent discovering that their child is in a relationship with another minor and making a complaint
- Fighting between families because of a relationship between minors
While there may exist the mutual relationship between minors in these cases, they will still be classed as the crimes under this law if either of them is under the age of 18.
It is very much important to know about the potential legal consequences before you get involved in any above situations.
What You Should Practically Do in Such Situations
If at all the situation involving the minor relationship leads to the legal complications:
- Seek the proper legal advice immediately
- Avoid making the statements without any legal guidance
- Cooperate with all the legal procedure
- Understand seriousness of the POCSO allegations
How Lead India Can Help
The legal situations involving the POCSO Act can be very complex and emotionally stressful. The legal guidance is very much important to know the rights and responsibilities of all parties involved.
One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.
FAQs
1. Can the minor legally consent to the relationship in India?
No. As per the Indian law, the person below the age of 18 cannot legally consent to the sexual activity.
2. What is the legal age of consent in India?
The legal age of consent in India is 18 years.
3. Can the consensual teenage relationship still lead to the POCSO case?
Yes. If at all one person is below 18 years, the provisions of POCSO Act may apply even if the relationship was fully voluntary.
4. Does marriage with minors remove the criminal liability?
No. The courts have clarified that the sexual relations with the minor remain punishable even in the cases of child marriage.
5. Can the courts consider the nature of a relationship?
The courts may consider facts of each case, but the law itself does not really recognize the consent of minors.
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