We are seeing that there is an increase in litigation between children in their teen age or early twenties. Since they are children the effective litigation is handled by their parents. Many parents in India are still not ready to accept the new age reality of teenage relationships. The Madras high court has made very progressive remarks[1] one after other in many cases by saying that time has ripen for amending the laws regarding children especially when their is elopement and any sexual relationship is established.
BROADER PERSPECTIVE
The issue is not as simple as it looks but if we dive deep we see an ocean of problems:
Currently these laws are a tool in the hands of few parents to pull the reign of their child’s sexual choices and even controlling their choice of selecting a partner to marry. In thousands of cases the scenario is that young girls and boys elope because of family pressure and the family after a manhunt firstly threatens the children and then lodges fake cases in order to harass the boy and his family. The age factor which decides whether a person is major or not is very tough and does not serves the purpose of justice effectively because of labyrinth of laws that have different criteria for deciding age of majority. It will not be wrong to join the nodes of this issue to the scenario of honour killing in the country. While the society has progressed a lot but honour killing remains a truth which is alive and continues to happen.
LEGAL PROVISIONS
Not only under the Prevention of children from sexual offenses act (POCSO act) but also the justice juvenile act (JJ Act) and the Indian Penal Code (IPC) there are offences which enumerate some sexual acts as offence because of the age slab. Another allied issue is that absence of mens rea (which says no one guilty unless the mind is guilty) is of no importance so even if the act is done with no intention of crime there is an offence. Presumption of offence in certain situations and no weightage to consent was brought in legal regime to save the minors from exploitation but it is becoming a reason of their exploitation in some instances as the courts are observing of lately.
POCSO ACT- The act has a detailed scheme of what constitutes sexual offence. Talking specifically of a minor child being an accused then JJ act comes into play by purview of section 34 of act.
IPC- section 359-361 define kidnapping from lawful guardian ship in case of minor boy of 16 years of age and minor girl of 18 years of age.
The consent factor is not any defence in above offenses. So if a girl aged 16 elopes with a boy aged 17 years then it will be held that the boy has kidnapped the girl or if a girl aged 17 years elopes with a boy aged 20 years then it is an offense. If sexual intercourse has taken place between them no matter it was out of love between them, offence is again established. This is the matter that becomes problematic when genuine cases get thrashed in the courts of law.
The irony is that recently the parliament passed a law which said that when a child in conflict with law commits heinous crime than he may be punished at par with that of adults which impliedly means that age should not become a tool to run away from the hands of law which also means that mens rea is the element that is looked at while punishing children in conflict with law for very shocking crimes. Similarly when the youngsters in their teenage or early twenties are booked under different laws for being in relationship of nature not acceptable to society then a fair chance of letting the young people speak their mind must be allowed and newer societal change must be taken into account and intention to crime must be a factor to determine the offence.
WHAT IS AT STAKE?
This topic has a nexus with humanitarian law, right to sexual choice, perception of morality and its acceptance, psychology of teenagers as well as parenting. Teenage relationship is a taboo in India and a issue is being made out of nowhere when this is caught by relatives, parents, neighbours. Choice of two person who if parents think are wrong must not be brought into legal tussle instead a route to counsel them must be taken instead of threatening and embarrassing them with cases in court. Future of two bright teens gets marred because of enmity of parents. We still have honour killings as social menace whereby families go the extent of killing of their kids for the fake honour and the rate of lodging complaints and conviction rate in such cases is miniscule. Many cases go unnoticed and no one ever knows something like this ever happened.
SOLUTION
Sexual act is not an offence in itself. Offence which have a crime element and are forced is wrong and punishable and must be so. Whenever cases of elopement and love relationship come in court the counselling of parties without litigators is very important. Counselling of parents is equally important. One infrastructural change is needed in the recording of births so that manipulation with age cannot be done. Age becomes the biggest determiner and each party runs from pillar to post to prove minority. Yes it is not advocated that one must be allowed to get away even when there are heinous and actual crimes so it must depend on facts and circumstances of each case. But the greater good of two people who are future of nation must be taken care of.
JUDICIARY HAS ADOPTED NEW AGE PERCEPTIONS ALWAYS
In S. Vardarajan v. State of Madras the court held if the girl leaves the house of her guardians at her own will then the boy will not be guilty if their is no active advise given by him for eloping. One important observation made their was that it is moral obligation of the boy to return the girl to her parents. So point to be focused is that if both the parties are in their teen ages, can their be any expectation from any of the two to understand their moral responsibilities and act in furtherance of that. In another case Rex v James Jarvi was observed that if girl was capable of thinking for herself and making her own mind so even if there was taking away the guilt is not proved. In the case of the court accepted the over all background of the girl ie education in determining the guilt of the accused boy for kidnapping. Judiciary was the one which accepted live in relationship and allowed women to claim maintenance in courts of law and availing justice. In cases like Indra Sarma v Deputy Director Consolidation; Khushboo V. Kaniammal; Badri Prasad v Dy. Director of consolidation it has been held by court that just because live in relations are immoral in eyes of society does not means that they are an offence. Similar progressive views need to get established now.
CONCLUSION
For the matter in hand to save the young boys and girls from getting harassed may be a new addition in the form of counselling of parents, children is needed because ultimately justice is being served by courts. This issue is society oriented most of these cases will not arise if the parents accept the new age change of relationship and act as confidants of their children and not the decision maker of the whole life of their children. The age of consent varies hugely in nations across the world and the age bracket begins from 12 years to 20 years depending on the conservatism of the nations. The conservatism of the society and its perception of morality must not become a roadblock of youngsters life and courts must be ready to accept the changing norms of society. Even if girl is young and boy is adult the immediate judgement of boy being guilty must not be made. Criminal element is important to establish offence not morality of socie
[1] https://www.thehindu.com/news/national/tamil-nadu/amend-pocso-act-says-madras-high-court/article33700258.ece
This article is written by Poonam Maurya, postgraduate from Amity University.