The Nagpur bench of the Bombay high court dismissed the bail petition of an accused man for raping a minor as clearly declared by the court that consent of minor is unacceptable in the eyes of law in any of the allegations.
The plea was filed by Peer Mohammad Ghotu Mohamed Ismail, a 23-year-old man for granting bail as according to him it was a consensual relationship between him and the survivor. He further said that the survivor had ‘willingly’ been in a relationship with him and has spent 45 days at his residence at kaushambi, Uttar Pradesh, Bar and Bench, reported.
The minor/survivor further stated that the accused threatened her that he will kill his younger brother who is three and a half years old only and because of the caused threat she has to give her consent apparently.
The court dismissed the plea arguing that minor consent is of NO VALUE whether consent is offered by threat or willingly is redundant when dealing with cases under PROTECTION OF CHILDREN FROM SEXUAL OFFENSES (POSCO) ACT.
In this case, the survivor’s testimony coupled with medical opinion was used to prove rape charges against the accused. The bench upheld his conviction under the INDIAN PENAL CODE, THE POSCO SCT, THE SCHEDULED CASTE, AND SCHEDULED TRIBE( PREVENTION TO ATROCITIES) ACT for raping a minor girl.
The idea of minor consent is a deep consented area. Last year another bench of the Bombay high court called it a ‘ Legal Grey Area’.
Moreover, the concept of consent between two minors, ( this is a different case from the present one) deems irrelevant because their below legal age makes them ‘incapable’ of giving consent in the first place. So any form of sexual relationship between minors can be counted as statutory rape.
The age of consent is fatiguing and vague as there was a case in which 17-year-old minor filed a case against an 18-year-old boy for rape and later she admitted that they were in a consensual relationship after the revealed facts also the accused was sent to jail for 10 years of imprisonment.
Every minor or adult boy irrespective of age can be punished and sent to imprisonment for sexual intercourse with minor even being in a consensual relationship because consent of minor is of no value in eyes of law .
The bench also discussed whether teenagers should be punished or not for sexual intercourse as after attaining the age of 12 they develop sufficient understanding of the implications of an offense.
A majority of cases of sexual assault under the PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POSCO) ACT are dealing with 16-18 years of age as the children are in consensual nature of relation those reported by parents who disapprove the teenager’s conduct.
“Young couples are harassed by their family members for filing false cases of rape against their partners which is not rape but is a teenager’s romance. Lawyer Ragini Vinaik pointed out that sections 375 and 376 of IPC are previously applied in cases to restore the family’s prestige and honor in society ignoring the obvious consensual relationship between young couples.
The court in their final judgment added that there is no primary document contained in the charge sheet to show the age of the victim. This aspect can be considered during the trial where there will be an opportunity for the prosecution as well as a victim to prove the girl’s date of birth.
The law tussles with reasonably framing a normal sexual activity and managing parental control over adolescents. In this case, the protection of sexual abuse survivors remains prime.
The above strong and convincing judgment was passed by JUSTICE VINAY DESHPANDE AND JUSTICE JUSTICE PRABHUDESAI.
As the above case is in support of minors there should be no value of consent as their minds are not fully developed for the consequences of their act and they do this in respect of their emotions and influence which may not be punishable.