AGE OF CONSENT: MEANING, CHALLENGES, WAY FORWARD

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Context

The Union Government defended the age of consent at 18 as essential to protecting minors, warning that lowering it would weaken child protection and enable abuse. This came after senior advocate Indira Jaising urged the SC to reduce the age to 16, citing the criminalisation of adolescent relationships.

What is the Age of Consent?

It is a legal concept, establishing the minimum age at which an individual can legally agree to participate in sexual activity. Prior to reaching this age, the law assumes a person is incapable of providing valid consent, making any sexual activity with them a crime, "statutory rape," regardless of their willingness.  

History of the Age of Consent in India

1860: Indian Penal Code (IPC) set the age of consent at 10 years.

1891 (Age of Consent Act): Cases like Phulmoni Dasi, an 11-year-old child bride who died from forced consummation, and Rukhmabai, who refused to live with her child husband, led to the Age of Consent Act, raised the age to 12 years for all females, married or unmarried.

1929 (Child Marriage Restraint Act/Sarda Act): Set the minimum marriage age for girls at 14 years, and 18 for boys. However, an exception in the IPC allowed marital sexual activity with a wife aged 13 or above, effectively permitting marital rape below the age of consent.

1940: Age of consent for girls was established at 16 years.

1978: Minimum legal age for girls to marry increased to 18 years, aligning with the current marriage age. Yet, the age of consent for sex remained at 16, with the marital rape exception applying if the wife was 15 or older.

2012 (POCSO Act) and 2013 (Criminal Law Amendment Act): Raised the age of consent for sexual activity to 18 years for all genders, criminalizing all sexual acts with anyone under 18, irrespective of consent.

What are the Key Challenges Regarding the Age of Consent in India?

Criminalization of Consensual Adolescent Relationships: POCSO Act's rigid definition criminalizes consensual sexual activities between adolescents, particularly those aged 16 to 18.

• Many parents file cases under POCSO when their daughters engage in relationships without their approval, especially in inter-caste or inter-religious relationships.
• Studies reveal that 18% to 54% of sexual assault cases under POCSO between 2013-2016 involved consensual relationships, leading to acquittals when the adolescent girl testifies consent.
• Accused boys face immediate arrest, lengthy detentions, and sentences of 10 years or more, even for consensual acts.

Age of Marriage and Social Realities: Lawmakers have historically linked the age of consent to the age of marriage, as seen in the 84th Law Commission Report (1980), which suggested raising the consent age to 18 to align with the marriage age, backs traditional social norms that expect sexual activity only within marriage.

• Despite laws, 23.3% of women aged between 20-24 reported marrying before 18, according to the National Family Health Survey (NFHS-5, 2019-21).

Compromised Access to Sexual and Reproductive Health (SRH) Services: Mandatory reporting provisions in POCSO and the Criminal Procedure Code compel doctors and hospitals to report any knowledge or suspicion of underage sexual activity to the police.

• Legal obligation deters adolescents from seeking essential healthcare services like contraception, emergency contraception, or safe abortion, fearing criminalization of themselves or their partners.
• An RTI request showed a 95% decrease in abortions among girls under 15 in registered centers between 2014 and 2019, experts express concern that indicate a rise in unsafe and illegal abortions nationwide.

Selective Application and Judicial Burden: Law applies selectively to reinforce conservative social norms, particularly against inter-caste or inter-religious relationships, disproportionately affects individuals from marginalized communities like Scheduled Castes, Scheduled Tribes, and Muslim communities.

• High number of consensual cases under POCSO overburdens courts, leading to backlogs and delaying justice for genuine child abuse victims, backlog of POCSO cases reached 1.3 lakh in 2023.

Contradictory Legal Frameworks: 18-year consent age presumes minors lack the maturity to make informed decisions about their sexuality, disregarding their "evolving capacities" recognised by the UN Convention on the Rights of the Child, India has signed and ratified in 1992.

• A paradox exists with the Juvenile Justice (Care and Protection of Children) Act, 2015, which allows 16-18-year-olds to be tried as adults for "heinous crimes," acknowledging their maturity for criminal intent, but denies their sexual agency under POCSO.

Government Stand  

The Union Government informed the Supreme Court in August 2025 that the 18-year age of consent policy decision essential for protecting minors from sexual exploitation.

Government asked the court for judicial discretion on a case-by-case basis rather than statutory changes.

Lowering the age or introducing legislative exceptions would "dilute the statutory presumption of vulnerability" and "open the floodgates to trafficking and other forms of child abuse under the garb of consent".

Government highlights that Article 15(3) and Article 21 of the Constitution mandate the state to protect children and ensure their right to life and dignity, forming the constitutional basis for a high age of consent under the POCSO Act 2012.

Judicial Intervention

Sabari vs State of T.N., 2019: Madras High Court acquitted an accused in a consensual relationship with a 17-year-old, suggesting that Parliament reconsider defining "child" under POCSO as 16 years instead of 18.

Atul Mishra vs State of U.P., 2022: Allahabad High Court stated that POCSO's strictness should not hinder consensual teenage relationships that result in marriage.

Anoop vs State of Kerala, 2022: Kerala High Court highlighted that POCSO fails to distinguish between genuine "rape" and "sexual interactions" originating from affection and biological development among adolescents.

Independent Thought vs Union of India, 2017: Supreme Court nullified the marital rape exception (Section 375 of IPC) for adolescent brides under 18, bringing it in line with POCSO.

Vijay Chand Dubey vs State of Maharashtra, 2025: Bombay High Court asserted that a 14-year-old minor girl possesses "sufficient knowledge" and "capacity" to understand her actions, advocating for a case-by-case assessment of adolescent maturity and the impact of detention on young offenders.

International Comparison of Age of Consent

• Most countries set the age of consent between 14 and 16 years.
• Some countries have an age as low as 12 (e.g., the Philippines and Angola).
• Others have an age as high as 21 (e.g., Bahrain).
• Worldwide average age of consent is 16 years. 

Many Western countries, unlike India, employ "close-in-age" exemptions, called "Romeo and Juliet laws".

• These provisions protect individuals from statutory rape charges if both parties are minors and their age difference falls within a specified range (e.g., 2-5 years), to avoid criminalizing consensual adolescent relationships, and protect against exploitation by older individuals.

What is the Way Forward for the Age of Consent in India?

Legal Reforms

Introduce Close-in-Age Exemptions: Implement a "Romeo and Juliet" clause within POCSO, allowing for consensual relationships between adolescents (e.g., 16-18 years old) with a small, defined age gap (e.g., 3 years).

Revisit the Age of Consent: Rolling back the age of consent to 16 years, align with the Justice Verma Committee's recommendations and the international trend, while maintaining strict protections against genuine child sexual abuse and exploitation.

Reform Mandatory Reporting: Repeal mandatory reporting provisions for doctors and hospitals regarding adolescent sexual activity. Remove penal provisions for professionals who fail to report.

Harmonize Laws: Harmonize inconsistencies between the age of consent and the age of marriage, or clarify the legal loopholes that create ambiguity like exception 2 to Section 375 of the IPC that states sexual intercourse or sexual acts by a man with his own wife, where the wife is not under the age of 15, do not constitute rape.

Judicial Approach

Courts must emphasize the totality of circumstances, prioritizing the adolescent's testimony and recognizing their capacity for decision-making, rather than solely relying on a strict age cutoff.

Societal Changes and Education

Comprehensive Sexuality Education: Introduce compulsory, scientifically accurate, and age-appropriate sexuality education in schools, as part of New Education Policy 2020, empowering adolescents to make informed decisions.

Promote Adolescent Autonomy: Promote social acceptance of adolescent sexuality as a normal part of development, moving away from rigid norms that link all sexual expression solely to marriage.

Sensitization and Training: Provide training and sensitization for medical practitioners, law enforcement, and judicial officials on adolescent realities, and consent, to reduce biases and ensure a child-friendly approach.

Support for Autonomous Choices: Develop social support systems for young couples, especially those in inter-caste or inter-religious relationships, facing parental opposition and coercion, ensuring their safety and dignity.

Source: INDIA TODAY