§ The rule and its basis

None of the offences in Chapter II makes absence of consent an ingredient. The offence is complete on proof of the act and the age of the victim.

A person below eighteen cannot give a legally valid consent to sexual activity. Section 2(1)(d) defines a child as any person below eighteen, without exception.

The general law agrees. Section 63 sixthly of the Bharatiya Nyaya Sanhita makes intercourse with a woman below eighteen rape, with or without her consent.

Consequences. Consent is no defence; there is no defence of mistaken belief as to age; and Section 30 presumes the culpable mental state.

§ Why the distinction matters even outside POCSO

Submission is not consent. Yielding to force, fear, pressure, authority or dependence is not a free choice.

State of H.P. v. Mango Ram, (2000) 7 SCC 224. The Supreme Court held that submission of the body under fear or terror cannot be construed as a consented sexual act; consent requires voluntary participation after exercising intelligence based on knowledge of the significance of the act.

In a POCSO case, the distinction does not affect guilt, because consent is irrelevant. It matters in two places: where the age is not proved and the case falls to be judged under the general law; and in assessing, at bail or sentence, whether an apparent relationship was in truth one of exploitation.

Grooming. An adult who builds a relationship with a child in order to abuse the child obtains, at most, submission. Courts treat claims of a romantic relationship between an adult and a young child with great caution.

§ Cases arising from consensual adolescent relationships

• The legal position is unchanged. A consensual relationship between a boy and a girl below eighteen, or between a young adult and a girl of sixteen or seventeen, is within the POCSO Act.

• The typical case. The complaint is made by the girl's family, often after the couple elopes, and frequently where the family opposes the relationship on grounds of caste or religion. The girl often supports the accused at trial.

• Where both are minors, the boy is dealt with under the Juvenile Justice Act by virtue of Section 34, and the girl is treated as the victim.

• The tools the law allows. Bail, taking into account the relationship and the closeness of ages; proof of age, since POCSO falls away if the victim is not proved to be below eighteen; and, within the statutory range, sentence. Consent is never a defence.

📖 In Re: Right to Privacy of Adolescents, 2025 INSC 778, decided 23 May 2025

The background. The Calcutta High Court had acquitted a man convicted under POCSO of offences against a fourteen-year-old girl with whom he had a relationship, making general observations about adolescent sexuality. In 2024, the Supreme Court took up the matter of its own motion, set aside the acquittal and restored the conviction, and appointed an expert committee to assess the situation of the victim.

The 2025 decision. A Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan found that the victim, now an adult, had married the accused, was living with him and their child, and did not see what had happened as a crime; her trauma had come from the police, the legal process and society. Recording that in law the Court had no option but to impose the minimum sentence, it exercised its power under Article 142 and directed that the accused, though convicted, would not undergo sentence.

Not a precedent. The Court stated expressly that the case is not and should not be a precedent, describing it as an illustration of the failure of society and the legal system. It directed the State to act as the guardian of the victim and her child, and took forward suggestions on sex education and support services.

Rule: the offence and the conviction stand. Only the Supreme Court, under Article 142 and in an exceptional case, can mould relief below the statutory minimum.

§ Child marriage and the POCSO Act

The Prohibition of Child Marriage Act, 2006 defines a child as a male below twenty-one and a female below eighteen. A child marriage is voidable at the option of the child party under Section 3, and void in the cases in Section 12. An adult male who marries a child is punishable under Section 9, and those who solemnise or promote it under Sections 10 and 11.

The POCSO Act has no marital exception. A sexual act with a person below eighteen is an offence whatever the relationship, and a subsisting marriage, even one not yet avoided, is no defence.

Personal law. Under Section 42A, the POCSO Act prevails over any inconsistent law. The High Courts have held that a marriage valid under personal law does not take a sexual act with a child outside the Act.

Sexual relationship with a minor spouse. Intercourse by a husband with a wife below eighteen is therefore both penetrative sexual assault under POCSO and rape under the BNS.

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

Exception 2 to Section 375 of the Penal Code protected a husband whose wife was not under fifteen. The Supreme Court held that the exception, to the extent it excluded girls between fifteen and eighteen, was arbitrary and discriminatory and violated Articles 14, 15 and 21, and read it down so that intercourse with a wife below eighteen is rape. It relied on the POCSO Act, which treats every person below eighteen as a child and contains no marital exception, and on Section 42A.

Rule: a girl below eighteen is a child whether or not she is married. Section 63 Exception 2 of the BNS now states the age of eighteen in its text.

§ Two different questions

• The minor wife. Settled. After Independent Thought and under the BNS, the marital exception does not protect a husband whose wife is below eighteen, and POCSO never did.

• The adult wife. A different question, outside POCSO. Exception 2 continues to exempt intercourse by a husband with his wife who is not under eighteen. Its validity was challenged before the Delhi High Court, which delivered a split verdict in 2022, and the question was taken to the Supreme Court. Check its current status when revising.

• For an answer on POCSO, the point to make is that POCSO has no marital exception at all, and the age at which the general law's exception begins is now aligned with the POCSO age of eighteen.

The existing law

The age of consent is EIGHTEEN, under POCSO s. 2(1)(d) and BNS s. 63 sixthly. Consent below it is legally irrelevant

Law Commission, Report No. 283 (2023)

Advised AGAINST lowering the age of consent, and proposed guided judicial discretion in SENTENCING where the child is between sixteen and eighteen and there was tacit approval

State of U.P. v. Anurudh (January 2026)

The Supreme Court, noting misuse of the Act in consensual adolescent cases, urged the Union to consider a ROMEO-JULIET clause, a close-in-age exemption for genuine adolescent relationships

In Re: Right to Privacy of Adolescents (May 2025)

Relief under Article 142 in an exceptional case, expressly not a precedent

The arguments for reform

The Act criminalises consensual conduct it was not designed to reach; families use it to punish relationships; mandatory reporting deters adolescents from medical care

The arguments against lowering the age

A lower age would weaken the protection against child marriage and trafficking; consent at a young age may be manipulated; a bright line protects every child equally