This paper deals with the age of consent laws around the globe and the lack of coherency in the Indian laws with regard to the same. The ambiguity around age of consent has catalysed the tussle between the paternalistic society defining contours of sexuality and the emerging liberal society propounding freedom of sexuality. Historically it is known that sexual intercourse before marriage is considered as a sin and also a justification for child marriages. In distinct with the issue of preventing sexual exploitation of a girl child, this paper analyses the modern view of freedom of sexuality among adolescents which has gained momentum. But the hurdle to this freedom is the Criminal Law (Amendment) Act, 2013 along with Prevention of Child Sexual Offences Act, 2012, which criminalises intercourse with a girl below the age of 18 irrespective of it being consensual.
This paper analyses the transformed sexual decision making especially among adolescents outside the bond of marriage and the need for compatible laws. In the 21st century with the influence of media and modern technology, sexual maturity is redefined. Adolescents have the curiosity of exploring their sexuality and therefore consensual intercourse before marriage is widely observed. But such behaviour among adolescents is criminalised under the veil of protecting them from themselves. This argument finds justification in harmful effects to health of adolescents because of pregnancy and other issues relating to harmony in society. However criminalisation of adolescent sexual behaviour implicitly promotes child marriage, as it is not void-ab-initio but merely voidable and it is the only option for the parties to elude stigmatisation by society. It is also not possible to educate the adolescents with regard to safety measures during intercourse and thereby making them vulnerable to unexpected consequences. Criminalisation is also a tool to augment parental power and thereby to suppress the sexuality of adolescents. This paper argues that coherence in laws is a solution to these problems by way of balancing sexual rights and protection from sexual exploitation and health hazards, of adolescents. The final section of this paper constitutes certain recommendations to untie the Gordian knot.
Age of consent has always been considered to be a tool defining the aspects surrounding women safety. The history of the age of consent inevitably invokes the patriarchal society in India wherein even sacred texts like the Smriti which stated that woman are inherently evil and is in constant need of discipline.[i] The concept of child marriage and the ritual of garbhadhan turned the female gender into a legitimate instrument of her husband’s sexual gratification and a medium of procreation.[ii] In the present situation there was a dire need for socio-legal reforms with the main purpose of protecting girl child from health hazards because of pregnancy and other problems. However reformers confined their demand only with respect to the health issue but did not dare to challenge the complete patriarchal society.[iii] History has been ambiguous with regard to many issues by virtue of misinterpretation and contradicting literature. So interpretation of the present situation is to be done considering the present situation only.
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