HC reiterates sex with minor is rape, imposes deterrent punishment

NAGPUR: The Aurangabad bench of Bombay high court recently considered historical data on the accepted age of marriage in India, and reasons for fixing the age of statutory rape, while upholding conviction of 21 people in a case of forcing a minor into prostitution.
A huge hue and cry was raised over safety and security of women after the Delhi rape case with some voices also demanding reduction of the age of marriage as per the age old practices.Historical data presented in the Bombay high court's Aurangabad bench revealed that age of marriage as well as consent was 10 years in 1860, and raised subsequently over time.
Based on this historical information and the circumstantial evidence at hand, a division bench comprising AH Joshi and UD Salvi convicted 21 persons for raping, kidnapping and forcing an Ahmednagar-based minor schoolgirl into prostitution. They were awarded eight to 10 years of RI along with other terms under Prevention of Immoral Trafficking Act (PITA). The accused had contended that they were not at fault as they had gone to the victim as customers, thinking that she was a commercial sex worker and were completely unaware of her age.
Amicus curiae JR Shaikh and additional public prosecutor VA Shinde strongly opposed the contention, pleading that the sequence of events along with witnesses' evidence clearly proved the sexual acts of accused. "Whether those were with consent are totally irrelevant, as the victim was not competent to give consent. Even the victim had said on oath that her acts were not based on free consent."
They further contended that the prosecution was not required to prove that the accused had knowledge that the victim is under 16 years. "Mere act of sexual relation with a minor has been made culpable. Rape is typically an act attracting 'strict liability' under penal law," they said.
They stressed on the fact that when it is proved that an offender had sexual relation with a minor, whether or not the offender knows the age of girl, the person is guilty of 'rape'. "The defence of the accused is that the victim is a 'sex worker'. The concept that sexual act was with a 'sex worker' child and with her consent is not recognized as an exception in Indian legal regime," the lawyers pointed out.
Deliberating on laws in other countries, Shaikh and Shinde argued that the defence of accused that they had made a reasonable mistake regarding the victim's age was no defence anywhere in the world. "The need of protecting children from sexual abuse is felt or recognized world over. Law deals with offenders against children everywhere in the world rigorously and with a heavy hand."
Citing the act as defined by the legislature, they said the laws on rape were enacted so that men should be aware that conviction shall follow an act of sexual intercourse with a girl below 16 years, despite their genuine belief that she was not a minor.
Explaining Section 375 of IPC, they informed that statutory rape was defined to deter sexual activity with children by discouraging a mistake of age as a defence. Therefore, the proposition about consensual sex canvassed by the accused is absolutely untenable and unsustainable.
"With all ideals of reformatory theory, in cases of the nature of rape, the reformation would not really play the desired role, the punishment has to be severest and deterrent, leaving a message that the offences of strict liability would attract severest sentence," the court observed while citing an old verdict and rejecting cases of all 21 applicants.
Age of consent & marriage in India:
Year -------- Consent ------------ Marriage
1860 ------- 10 -------------------- 10
1925 ------- 12 -------------------- 12
1929 ------- 14 ------------------- 13
1940 ------- 16 ------------------- 15
1978 ------- 16 ------------------- 15
(*In 1929, Child Marriage Act was passed while in 1940, IPC was amended)