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Kerala, Raise age-limit for giving consent for sexual intercourse to 18
Kochi: It is imperative to raise the age-limit for giving consent for
sexual intercourse to 18, a Division Bench of the Kerala High Court opined on
Thursday.
January 21, 2004
At least the Kerala Legislature should take bold efforts by bringing in a local
amendment to section 375 of the Indian Penal Code and give leadership to
others, Justice R. Basant said in a rejoinder to the judgment in the 30 appeals
filed by 36 accused convicted by the special court in the Suryanelli sex
scandal Case.
"To me it rebels against logic and reason that a system which considers a
person aged less than 18 years to be a child/minor, not competent to take major
decisions affecting her life for the purpose of Indian Majority Act, Contract
Act, Juvenile Justice Act, Child Marriage Restraint Act, Representation of
People Act and even some of provisions of the Indian Penal Code, should concede
to such child the right to consent to sexual intercourse.''
She cannot at that age marry even with the consent of her parents. She cannot
be taken out of the keeping of her lawful guardian even without consent. But
she can consent to sexual intercourse so long as she does not go out of the
keeping of her lawful guardian. Strange proposition, the court said.
The court said it was easy to assume that no minor girl, if prudent and
intelligent and if her faculties of reasoning and sense of righteous behaviour
are properly developed and intact, would choose to consent to extramarital and
premarital sexual intercourse. However, law in its wisdom chose to concede to a
lass below 18 years but above 16 the right to consent to sexual intercourse.
That legislative wisdom cannot be questioned by the court. The court can only
inquire whether consent, in fact, was there and whether such consent was there
and whether it was vitiated on any of the grounds enumerated in the law, and
not whether it was moral or proper for the girl to give consent.
The age at which a female offspring is reckoned as capable of giving consent
for sexual intercourse has often been reckoned as the safe indicia to assess
the culture of a polity. Refined societies treat their children with concern
and compassion. Once puberty was reckoned as the age for consent for marriage
and sexual activity, but as civilisation advanced, it was considered atrocious.
However the legislature in India in its wisdom has drawn the line at 16 years.
The Law Commission of India in its 84th report had recommended to raise the age
of consent to 18 in tune with other enactments. But it was not accepted with
the result that the age of consent in an offence of rape continued to be 16
even today.
In a fiercely consumerist society that we life in, a young girl child is
exposed to so many temptations that it is difficult for the child which has not
been groomed in a proper atmosphere with a proper value system inculcated in it
to resist such temptation.
Such children can be termed as deviants, but cannot be merrily condemned and
left to their fate. They too deserve the sympathy of the system as it is no
crime of theirs that they are born and forced to grow up in such an atmosphere.
It is the duty of the secular state to give the requisite education to instil a
proper value system in such future citizens. It is a constitutional
responsibility of the state. That obligation cannot be relegated to religious
and optional institutions.
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