Correlation Between Age Of Consent And Age Of Marriage
Aasmi Saxena, SVKM's Jitendra Chauhan College of Law, Mumbai
ABSTRACT
The Age of Consent refers to the legally recognised age to give consent to engage in a sexual activity. The present age of consent in India is 18 years. This implies that the consent to engage in a sexual activity, provided by any individual falling below the prescribed age of 18, shall be treated as ‘no consent’ or as a minor’s consent is treated to be ‘Void ab initio’ in contractual terms.
Following the laid down structure of the amended criminal laws of India, Bharatiya Nyaya Sanhita 2023, Section 63 defines the offence of ‘Rape’ (replacing the previous Section 375 of the Indian Penal Code, 1860). The Section hereby defines the circumstances in which a man is said to commit rape if he engages in specified sexual acts with a woman under any of the listed circumstances, including:
Against her will.
Without her consent.
With her consent obtained by putting her or a person in whom she is interested in fear of death or hurt.
With her consent when she believes he is her lawful husband due to deception.
With her consent when, because of unsoundness of mind, intoxication, or administration of a stupefying substance, she is unable to understand the nature and consequences of the act.
With or without her consent, when she is under eighteen years of age.
When she is unable to communicate consent.
The provisions of Bharatiya Nyaya Sanhita 2023, state that any of the above mentioned acts if done without a woman’s consent or against her will, shall be an offence of ‘Rape’. Therefore, it may be inferred through the same that only a woman who is above the prescribed age of consent, i.e., 18 years of age, is eligible to give consent to engage in sexual activities. Any woman below the prescribed age of consent, when engages in any sexual activity, even after giving her consent, would not be considered as consent. Whereas, Protection of Children from Sexual Offences Act 2012, also known as the POCSO Act 2012, is a gender neutral act that penalises sexual offences committed against minors of both the genders, making it a gender neutral law.
