The government has decided to fix the age of sexual consent at 16 years and stick to the definition of rape as a crime against women. The government Group of Ministers (GOM) felt that keeping the age of consent at 18 years would leave uncovered criminal sexual activity among youth of the 16-18 age band. But the moot question is India has no means of tracking repeat sex offenders like foreign countries, making them a constant danger to society. In The U.S., which has nearly 7.5 lakh registered sex offenders in 2011, convicted sex offenders are legally required to provide personal information to a public registry. While on probation, they are subject to residency restrictions. They cannot live within a predetermined distance (typically 1000 ft) of locations which children frequent (parks, schools, pools, etc). Often, Internet and mobiles are banned and they find it difficult to get housing and jobs.1 Also there are cases of false allegation of rape which can cause equal distress, humiliation and damages to the accused.. The accused must also be protected against the possibility of false implication, said Delhi High Court while letting off a man accused of rape2. Recently a person acquitted of rape charges has moved the supreme Court seeking restoration of his lost dignity. The petitioner who ran a diagnostic centre was in jail for over four years before a trail court acquitted him3. Supreme Court in Khushboo’s case in para 29 of the judgment observed that Live-in relationships among adults fine4.
Paragraph 29 of the Judgment: While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex.
In Mrs. Tahra Begum Vs State of Delhi & Ors.5 Court noted that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18.6
In Vivek Kumar @ Sanju and Anjali @ Afsana vs. The State and another7 observed that: There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice.
If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of girl or on the part of boy with whom she ran away and married.
Marriage with Child
According to Section 2 (a) of the Prohibition of Child Marriage Act, 2006, a “child” means a person who, if a male, has not completed twenty-one years of age, and if female, has not completed eighteen years of age. Marriage with a minor child would not be valid but voidable and would become valid if within two years from the date of attaining 18 years in the case of female and 21 years in the case of male if she or he elects to accept the marriage, the marriage shall become a full-fledged valid marriage. Until such an event of acceptance of the marriage or lapse of limitation period, the marriage shall continue to remain as a voidable marriage.8
In Amnider Kaur and Anr. v. State of Punjab and Ors.,9 decided by Punjab and Haryana High Court, the Single Judge of the said Court has taken a view that having regard to the provisions of Section 12 of the PCM Act, 200610 marriage with a minor girl would be void.
If the girl is below the age of 18, then the police slaps a case under section 36111 of IPC accusing the boy of kidnapping her from guardian. If she has attained the age of 18, them the parents opposed to the marriage lodge a complaint under section 362, IPC12 accusing the groom of abducting their daughter through deceit. Sometimes the FIR is also lodged under section 366, IPC13 alleging that the girl was kidnapped to force her to marry the boy. In any case, the boy is arrested and the girl is rescued and sent to Nari Niketans.(Women’s home). The policy of law seems to be that child marriage is not void but voidable at the opinion of the minor and measures are taken to discourage child marriage. Hence, it would be appropriate if the police do not invoke the provisions of section 361 but the matter is dealt under the Child Marriages Prohibition Act, 2006. This will go a long way in preventing opportunities for honour killing to take place.
6 In this connection reference can be made to Artcle 251 of Mulla’s Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, In absence of evidence, on completion of the age of 15 years. Even in Tyabji’s Muslim Law under Artcle 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Artcle 268 of Mulla’s Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man of the woman as his wife. Article 90 of Tyabji’s Muslim Law also says that a marriage Is to be presumed on the acknowledgment of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian.
Marriage of a minor child to be void in certain circumstances.- Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.
11 Indian Penal Code (IPC) Section 361. Kidnapping from lawful guardianship
Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.
This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
12 Indian Penal Code (IPC) Section 362. Abduction
Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.– Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 3[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid]
About the Author
Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a book titled – Be Your Own Lawyer.