Introduction
When a minor willingly accompanies an adult and enters into a sexual relationship with them, it does not mean that legally valid consent has been given. This is the position taken by the Gauhati High Court while upholding a sentence under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The issue is particularly important because the argument that a girl willingly accompanied the accused is often raised in POCSO cases, especially those involving elopement or romantic relationships. However, the Court has made it clear that willingness alone cannot be treated as consent in the eyes of the law. What matters most is whether the victim was below eighteen years of age at the time of the incident.
The Legal Framework
Under the POCSO Act, a child is defined as any person below eighteen years of age. Section 3 deals with penetrative sexual assault, while Section 4 provides for its punishment. Aggravated forms of the offence are covered under Sections 5 and 6. The Act does not recognise consent as a defence where the victim is a minor. A similar position is maintained under Indian criminal law. Under the Indian Penal Code, as amended in 2013, sexual intercourse with a girl below eighteen years amounted to rape, irrespective of whether she had agreed to it. The Bharatiya Nyaya Sanhita, 2023, continues to follow the same principle. In Independent Thought v. Union of India (2017), the Supreme Court further strengthened this protection by reading down the marital exception in cases involving wives between fifteen and eighteen years of age. Additionally, Sections 29 and 30 of POCSO introduce statutory presumptions regarding the commission of offences and the accused’s culpable mental state, which the accused is required to rebut.
The Court’s Reasoning
The Gauhati High Court has dealt with this issue in several cases involving minors under the POCSO Act. In one appeal, the Court made it clear that once it is established that the victim was below eighteen years of age, her consent cannot be considered a valid defence. In another case, the Court observed that a girl below sixteen years could not legally consent to a sexual relationship and placed considerable importance on her birth certificate while determining her age. The Court has also maintained this position in a matter involving a sixteen-year-old girl, reiterating that consent has no legal recognition once her minority is established. These decisions reflect a consistent approach. The first step is to establish the victim’s age through reliable evidence. Once it is proved that she was below eighteen years, whether she willingly accompanied the accused or participated in the relationship does not change the legal position. Such circumstances may, however, be considered when determining the appropriate sentence.
Critical Analysis
Although this strict approach is intended to protect children, it has also raised certain concerns about how the law operates in different situations. One major concern is that the Act does not distinguish between an exploitative relationship involving an adult and a genuine relationship between two adolescents who may be close in age. This has led to what is commonly referred to as the “Romeo-Juliet” problem. The Law Commission’s 2023 report considered this issue but did not recommend reducing the age of consent from eighteen years. Instead, it suggested giving courts guided discretion when deciding sentences in cases involving older adolescents. Another concern is the mandatory minimum punishment prescribed under the Act, which leaves courts with limited room to consider the different circumstances of individual cases. The Gauhati High Court has itself reduced sentences in situations where the harsher punishment introduced through an amendment could not legally be applied to an offence committed before the amendment came into force.
The question of proving the victim’s age also presents difficulties. Since age is central to determining liability under POCSO, the prosecution must establish it through reliable evidence. The same High Court has acquitted accused persons in cases where the prosecution relied on birth certificates registered long after the actual date of birth, raising doubts about their reliability. Further, in an August 2026 decision, the Court acquitted an accused because the prosecution failed to establish that he knew the girl was a minor or that he had the necessary intention to commit the alleged offence, while still maintaining that a minor cannot give legally valid consent. This raises concerns about how the requirement of proving the accused’s knowledge may be applied in future cases. There is also the possibility that such reasoning could encourage accused persons to claim that they were unaware of the victim’s age.
The Child-Protection Rationale
Despite these concerns, the strict position adopted under POCSO is based on the need to protect children from sexual exploitation and abuse. Children may not fully understand the consequences of sexual relationships and are particularly vulnerable to emotional pressure, manipulation and inducement, especially when dealing with adults. If courts were to accept a minor’s willingness to accompany an accused as consent, the focus could easily shift from the conduct of the accused to the behaviour of the child. This would place an unfair burden on the victim to explain her actions and defend her decisions. By making the victim’s age the central consideration, the law seeks to avoid such situations and ensure that children receive the protection intended by the legislation.
Conclusion
The Gauhati High Court’s position is consistent with both the wording and the purpose of the POCSO Act. A minor’s willingness to accompany an adult or participate in a relationship cannot be treated as legally valid consent. This principle provides children with a clear and strong form of legal protection. However, the challenges surrounding proof of age, the accused’s knowledge and relationships between consenting adolescents also deserve attention. These issues should be addressed through careful examination of evidence and fair sentencing within the limits of the law, rather than by weakening the protection provided to minors. Ultimately, any change to the existing legal position should come through Parliament and not through an interpretation that introduces consent into a law specifically designed to exclude it.
