LUCKNOW: Can a 16-year-old girl’s consent to have sexual intercourse be considered valid? The colonial rule under Indian Penal Code, 1860 speaks in affirmative. The Lucknow bench of the Allahabad high court has said that since a girl is not considered mentally and physically fit to give her consent for sexual intercourse at this age, such a consent cannot be considered as out of free will.
Justice V D Chaturvedi issued notices to Attorney General of India and UP Advocate General whether Central and state governments intended to raise the 16 years age parameter to 18.
The court’s observations came during a hearing of a criminal appeal filed by a rape convict sentenced with seven years of rigorous imprisonment. In the appeal, the convict had pleaded that the girl was 17 at the time of rape.
She had given her consent for physical relations. Therefore, his conviction was not proper under Section 376 IPC for rape as Section 375 provided that the girl could give consent for sexual intercourse after attaining the age of 16. Based on the circumstances of the case, the court dismissed the appeal upholding the conviction, also holding the consent was not voluntary.
Holding the age of 16 as premature to provide consent for intercourse, the judge derived clues from different enactments passed by Parliament, including Hindu Minority and Guardianship Act, Child Marriage Restraint Act and Juvenile Justice (Care and Protection of Children) Act.
The court found that under these enactments, the age of a girl has been determined either 18 or 21, but the age-old IPC in sections 375 and 361 mentioned the age as 16 years for the purpose of legalising rape or kidnapping of male child. These provisions are in breach of the Directive Principles of State Policy contained in the Constitution, said the court.
“It’s an irony of law that, on one hand a person below 18 is treated as a minor and is not considered fit for marriage, but on the other hand, a female child of 16 years is considered mentally and physically fit to give her consent for sexual intercourse (under section 375 IPC) and a male child of 16 is deemed mentally matured to give consent to go with another (under section 361 IPC),” commented the court.