§ Why the child's consent does not count

• The offences are defined without it. Penetrative sexual assault under Section 3, sexual assault under Section 7 and sexual harassment under Section 11 are each defined by the act done to a child. Consent appears nowhere as an element to be negatived.

• The definition of child is absolute. Section 2(1)(d) defines a child as any person below eighteen, without exception for maturity, relationship or apparent willingness.

• The law presumes incapacity. A person below eighteen is treated as unable to give a consent the law recognises, in the same way that a minor cannot enter into a binding contract.

• So agreement is not a defence. Evidence that the child agreed, or even initiated the relationship, does not answer the charge. At most it bears on bail, and on sentence where the law leaves the court any discretion.

§ A second consequence: no defence of mistaken age

The Act provides no defence that the accused reasonably believed the child to be eighteen or older.

Section 30 presumes the culpable mental state in any offence requiring one, and the accused must prove its absence beyond reasonable doubt, not merely on a preponderance of probability.

The practical effect is that the accused takes the risk of the child's age. Where the age is genuinely disputed, the dispute is resolved by proof of age, not by the accused's belief about it.

Before 2012

SIXTEEN for the offence of rape

Section 375 sixthly of the Indian Penal Code: intercourse with a woman under sixteen, with or without her consent, was rape

2012

EIGHTEEN for all sexual offences against a child

The POCSO Act, Section 2(1)(d), treated every person below eighteen as a child

2013

EIGHTEEN in the Penal Code as well

The Criminal Law (Amendment) Act, 2013 raised the age in Section 375 sixthly from sixteen to eighteen, aligning the two laws

2017

EIGHTEEN within marriage

Independent Thought v. Union of India read down the marital exception so that intercourse with a wife below eighteen is rape

2024

EIGHTEEN in the new code

Section 63 sixthly and Exception 2 of the Bharatiya Nyaya Sanhita fix the age at eighteen throughout

📖 Independent Thought v. Union of India, (2017) 10 SCC 800

Exception 2 to Section 375 of the Penal Code provided that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, was not rape. The effect was that a husband of a girl between fifteen and eighteen could not be prosecuted for rape, although the same act by any other person was rape and was also an offence under the POCSO Act. The Supreme Court held the exception arbitrary and discriminatory, violating Articles 14, 15 and 21, to the extent that it excluded girls between fifteen and eighteen, and read it down so that the age was eighteen. The Court drew on the POCSO Act, and on Section 42A, to show that Parliament had itself treated a person below eighteen as a child in need of protection whether married or not.

Rule: marriage does not validate what the law otherwise forbids. A girl below eighteen is a child for the purposes of sexual offences whether or not she is married. The Bharatiya Nyaya Sanhita now states the age of eighteen in the text of the exception.

The age is not proved

If the prosecution fails to prove that the victim was below eighteen, the POCSO Act does not apply, and the case is judged under the general law, where consent is an ingredient

Bail

Courts have treated evidence of a consensual relationship between adolescents, the closeness of their ages, and the absence of coercion as relevant to whether bail should be granted

Sentence

Where the offence carries a range, the nature of the relationship may be weighed in fixing the sentence within it, though not below a statutory minimum

Quashing

Petitions to quash proceedings after marriage or settlement rest in substance on the relationship having been consensual; the courts are divided, and the Supreme Court has cautioned against quashing serious offences on compromise

§ Section 94 of the Juvenile Justice Act, 2015 and its use in POCSO cases

The order of evidence. Age is determined first from the date of birth certificate from the school, or the matriculation or equivalent certificate; in its absence, from the birth certificate issued by a corporation, municipal authority or panchayat; and only in the absence of both, by an ossification test or other latest medical age determination test.

The same approach applies to a victim. The Supreme Court has held that the statutory procedure for determining the age of a child in conflict with law may equally be applied to determine the age of a child victim.

Medical evidence is the last resort, and where it is used, it gives a range rather than a precise age, and the benefit of the margin is a matter for careful assessment in the circumstances of the case.

📖 Jarnail Singh v. State of Haryana, (2013) 7 SCC 263

The accused challenged the finding that the prosecutrix was a minor. The Supreme Court held that the procedure prescribed for determining the age of a juvenile in conflict with law should be applied to determine the age of a child victim as well, since there is no reason to adopt a different standard, and proceeded on the documentary evidence in the order the rules prescribed.

Rule: the age of a victim under the POCSO Act is determined on the same documentary hierarchy as the age of a child in conflict with law, now contained in Section 94 of the Juvenile Justice Act, 2015.

§ Law Commission of India, Report No. 283 (2023)

The reference. The Commission examined whether the age of consent under the POCSO Act should be reduced, in the light of the number of prosecutions arising from relationships between adolescents.

The recommendation. It advised against reducing the age of consent from eighteen, reasoning that a lower age would weaken the protection against child marriage and trafficking, and that consent at a young age may be the product of manipulation.

The proposal instead. It proposed amendments to introduce guided judicial discretion in sentencing in cases involving children between sixteen and eighteen where there was tacit approval, allowing the court to take the relationship into account without altering the offence.

The status. The proposal is a recommendation. It does not change the Act, and the age of consent remains eighteen.