Expert Take: Can Teenagers Legally Have A Consensual Relationship?

Can teenagers be involved in consensual romantic relationships? Can romance be considered legal among consenting teenagers? Or will it be termed as exploitation in which only the boy is implicated? These questions are being pondered upon by courts of different states. Allahabad High Court recently said that POCSO is being misused against teenagers in a consenting relationship. While Uttrakhand High Court has urged the State government to relook on the policies that talk about consensual relationships between teenagers. Let's dive into the hearings first.

On July 3, the Allahabad High Court said, "While the POCSO Act's primary objective is to protect children under the age of majority (18) from sexual assault, there are cases where it has been misused, particularly in consensual romantic relationships between teenage persons "

Misuse of POCSO ACT

The court was hearing a case in which an 18-year-old girl's parents accused a boy, Satish alias Chand, of enticing their daughter and getting married to her. The boy was booked under sections 363 (kidnapping), 366 (kidnapping and abducting a woman to compel her marriage or to cause her defilement) and 376 (rape) of the Indian Penal Code and under the Protection of Children from Sexual Offences (POCSO) Act at Barahaj police station in Deoria district.

When the case reached the court, the statements of both parties were heard. The girl said that she was in a consensual relationship with the accused. While the accused's counsel said that he had been wrongly implicated in the case. The duo were in love with each other. To escape the familial restrictions, they eloped and married in a temple. The two were neighbours from the same village.

In fact, when the duo eloped, the girl was pregnant and she now has a 4-year-old daughter. 

Justice Krishan Pahal granted bail to the accused. He said the POCSO Act was being misused against teenagers who are in a consensual relationship. However, the court said "The challenge lies in distinguishing between genuine cases of exploitation and those involving consensual relationships. This requires a nuanced approach and careful judicial consideration to ensure justice is served appropriately." 

Granting bail to the accused, the judge cited a judgement made by the Supreme Court in which it said "The radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side." So the court reiterated it and granted bail.

PIL against criminalising consensual relationships between teenagers

Another hearing at Uttrakhand High Court on July 4 was of a PIL submitted by advocate Manisha Bhandari that questioned the arrest of a minor boy for going on a date with a minor girl and the girl's parents filed a complaint against the boy for exploitation. The PIL stated that it is unfair to always consider the boy as the accused in such cases and penalised.

The PIL also said that a consensual relationship between teenagers is not a crime under 3,4,5,6 and 7 of the Protection of Children from Sexual Offences (POCSO) Act.

The court headed by Chief Justice Ritu Bahari and Justice Rakesh Thapliyal acceded with the question of the PIL and said, "...at the most, he can be called for giving him advice not to indulge in these things, but should not be arrested,"

The court urged the state government to examine if it is fair to arrest a minor boy for going on a date with a minor girl and her parents file a complaint of exploitation against the boy.

A lawyer's perspective 

To get a nuanced perspective on the case, SheThePeople reached out to Nidhi Kumar, a Practising Advocate at the Supreme Court of India and Delhi High Court. She said, "Laws which are meant for sexual offences are like a double-edged sword, as it is used for defence and attack at the same time." 

Talking about teenagers, Kumar said that even though teenagers are not considered adults by the law, their mindset is developed. They are capable enough to make decisions. But, Kumar said, just like rape laws protect women but also falsely implicate men, POCSO is used to target teenage couples in consensual relationships. 

She further said that it is the jurisdiction of the court to determine whether a relationship between teenagers is consensual. 

Importance of sex education

However, is it really possible for teenagers to determine what consent is? Well of course, if they are provided with good sex education. Sex education is the only way out of this confusion as it helps teenagers to determine what is consent, good touch and bad touch. 

Okay, let's keep sex education aside and think about the mentality of teenagers. How developed is their mentality? Advocate Kumar pointed out that despite their minor age, teenagers have developed mindset. When a teenager who is involved in a consensual relationship is considered not capable enough to make decisions, how do minors of the same age commit sexual assault? 

Minors committing sexual assault

Recently, a case was registered in which a teenage boy was sexually harassed by his own teenage friends. The friends made him do certain acts which were sexual and outraging. If teenagers are too minor to distinguish between right and wrong, how come they commit the wrong?

But, of course, our society wants to focus on its stigma. A couple cannot marry against their parents' choice. If they do, they face worse consequences including arrest. But why doesn't this awareness of laws ignite when girls are raped and assaulted by family members? 

While major courts are enmeshed in criminalising consensual relationships of teenagers, the pile of POCSO cases in the lower courts are increasing day by day. In 2020, 99 per cent of POCSO cases were pending in trial court. Then in 2023, the situation hasn't improved at all. Despite the presence of fast-track courts, India needs at least 9 years to clear all the backlog of cases. Only 3 per cent of the cases under the POCSO Act have resulted in a conviction. Over 2.43 lakh cases are pending at the Fast Track Special Courts (FTSCs) as of January 31 2023. 

Child Marriage

Moreover, the rate of child marriage in India is also disappointing. According to a UN report released last year, over 200 million women were married in their childhood. Is this okay for the society? Is it okay with parents if their daughters are married at an early age, the difference being that they are getting married to the person parents have selected? 

Why is this being ignored? Why aren't courts and the government trying to solve this problem? Creating policies after policies is not going to help. The proper implementation of even one policy is enough to gain good results. 

So what should be the conclusion? Are the courts and lawmakers deciding the just way to treat all individuals? Or is society the supreme judge which manipulates and uses laws when and how they suit them? I will leave it open-ended.  

Views expressed are the author's own.