WAIT UNTIL YOU ARE 18.. THE LAW WON'T

WHO IS DICTATING CONSTITUTIONAL MORALITY IN HUMAN DESIRE TO THE COURTS?

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This Article is written in light of the ongoing proceedings before the Hon’ble Supreme Court of India regarding lowering of the legal age for consensual sexual relationships from 18 to 16 in order to prevent criminalisation of teenage romantic relationships. The Union of India has stoutly opposed any judicial intervention to reduce the age of consent from 18 to 16 years whereas The Supreme Court has in a number of cases recommended not to treat “genuine romantic relationships between teenagers” as rape or child abuse and not to take severe action against such persons. This article highlights the Judicial Helplessness to guide the younger generations to brighter futures in this issue. 

The Biological and the Temporal:

Before We delve into the legalities of this subject, some scientific and civilisational facts are necessary to be outlined briefly. An exhaustive historical discussion is outside the scope of this article. 

Humans attain sexual maturity around 12–14 and may exercise “biological choice” to engage in or abstain from sexual relationship/sexual activity. Ancient India accommodated this through region-specific institutions for diverse practices such as polygamy, polyandry, non-reproductive sexual activity, same-sex relationships and non-marital relations based on esoteric values beyond physical needs alone. Abrahamic civilisations, however, confined sex to marriage, suppressing choice and subordinating women by tying sexuality to reproduction and power without permitting non-reproductive sexual activity. Modern constitutional civilisations, including India today, similarly limit legitimate sexual relations to marriage and legally fixed ages, leaving no space for plural, non-marital sexual practices unless constitutionally recognised and scientifically ratified.

The Mischief Maker

The Question of Reduction of Age (18 to 16) for Consensual Sexual Relationships has no basis in within the Constitutional Framework of our Nation. It is  deliberate mischief being played by state and non-state actors with the goal of “weaponising” the Legal Structure against “Targeted” Citizens of India on this issue by assuming that a numerical majority of Young Indians seek sexual relationships without marriage as a COMPULSIVE NEED. These Non-State Actors seek to Capitalise on their fallacious assumption for sinister reasons by  promoting Sexual Relationships as a recreational activity.  Their aggressive campaign through the judiciary is to grab State Sponsorship for such behaviour unmindful of the long term consequences on the human and social psyche. Let's examine the legal framework and the actions to twist it. 

Distinction Created - Sexual Freedom Vs Marriage:

Section 82 of BNS 2023, criminalises a person of enticing a married woman with the intention that such woman would have "illicit intercourse with any person”.  Here, the offender can be a Juvenile or Adult of any Gender.  

Section 81 punishes “A Man” for cohabiting with a woman making her to believe that she is “lawfully married”. Here, the offender can only be a Male or a Transgender identifying as a Male. 

The Offence of Rape under Section 63 of BNS 2023, regards intercourse by a Male with a woman below the age of 18 years “irrespective of consent” to be treated as an offence of Rape unless that woman is “married” to that Man. 

In Independent Thought .v. Union of India (AIR 2017 SUPREME COURT 4904)

 challenge was made to Exception 2 of Section 375  seeking to bring the Husband of a below 18 year old woman as a perpetrator of rape and termed it as “Marital Rape”. The Challenge succeeded. However, The Court never pondered the question What if the Husband was also between 18 to 21 years of age? In a recent judgment, The Hon’ble Madras High Court held that, consensual sex with a female “on the verge of turning 18 years” is not an offence under the POCSO Act! Would such a reasoning hold ground if Marriage had been thrown into the mix? 

In the landmark case of Joseph Shine Petitioner v. Union Of India (2018 INSC 898 (Sep 27, 2018) The offence of Adultery S.497 IPC was struck down for the reason that the provision was arbitrary and medieval  - to treat the wife as a property of the husband vis a vis who can prosecute and who can be prosecuted. This was the ground on which S.497 fails the constitutional test. 

However, Their Lordships went further (Paragraphs 32, 54, 109 253, 255 of Joseph Shine Case) making observations on the Constitutional Morality of “Adultery”. The reasoning of the Court focused on granting “sexual freedom to the Married Woman” as a revolution of liberation of women. The Court did not consider Age as a factor here as it was dealing with “Adult Married Women”. 

It is quite surprising the above reasoning does not to an offence of Bigamy under the IPC or under the New BNS, 2023. A Spouse can be prosecuted for marrying again during the lifetime of the other spouse irrespective of being a husband or a wife. No Judicial Decision pertaining to Bigamy questioned the penal provisions on the score of Constitutional Morality in Sexual Freedom of Married Women. The Parliament chose not to criminalise “Adultery” In BNS,2023 but chosen to criminalise “Bigamy”. 

Thus, as per Bharatiya Nyaya Sanhita 2023 and Constitutional Morality set down by the Supreme Court - Sexual Relationship and Marriage are Opposite to Each Other. The Law Penalises Marriage but seeks to normalise Sexual Relationship Sans Marriage in the age range of 16 to 18 years. 

When The Court declares “Sexual Freedom of a Married Woman” as “Constitutional Morality”, where is the question of her having “illicit intercourse” (S.84 BNS) with the offender or any other man or woman or transgender for that matter? 

When the Court decides not to protect a young husband (18 to 21 years) but permits the wife on becoming adult to have “Sexual Freedom” it signifies a clear attempt to dislocate Sexual Relationships from Marriage and viewing Marriages between young consenting teenagers as Offence where only the Man is liable for Prosecution. 

The Male Child Vivisected:

The Prohibition of Child Marriage Act 2006 (POCMA) defines  

Section 2 (a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age; 

Under Section 9 of the Act, A Male Adult above eighteen years of age can be prosecuted. If so, is a Male between 18 to 21 years a Child or Not as per Section 2(a) ?

Section 4 of the Act gives protection only to Female Children contracting Child Marriage. There is no provision to protect Male Children, rather the parents/guardian of the Male child is punished by requiring to provide maintenance to the “Female Contracting Party”, the provision deliberately does not mention “Female Child”. However, An Adult Female cannot be prosecuted under the POCMA Act. 

Even if an Adult Female victimises a Male Child by Marriage, The Male Child has no protection under the POCMA Act.

Is this Act not prone to serious abuse by Contracting Parties of Female Children and Adult Women?

The Protection of Children From Sexual Offences Act, 2012 (POCSO) defines 

Section 2 (d) “child” means any person below the age of eighteen years;

The POCSO Act is deliberately lopsided by bunching all male children in the Age Range of 16 to 18 years,as perpetrators and female children  as victims.

Under POCSO Act, The Male Child can only be Perpetrator and not victim unless the perpetrator is also a Male

In addition to Section 9 of the POCMA Act, The POCSO Act also conflicts with the definition of a “Male Child” under the POCMA Act, 2006. Upon reading the POCMA Act along with Section 63 of BNS, 2023, a sinister agenda reveals itself to criminalise the very existence of MALE CHILD in India.

Indications towards this ultimate goal is revealed when reading the judgment of the Hon’ble Delhi High Court in Independent Thought .v. Union of India in the year 2023 where Section 19 and 21 of the POCSO Act, were declared to override Section 198(1) and (3) of Cr.P.C.

Mischief Engineered?

The POCSO Act was enacted on the presumption that any Consensual Sexual Activity amongst Humans between 16 to 18 years of age is liable to be treated as a Penal Offence as against the Male Child alone.  The First draft of the POCSO Bill tabled in the year 2001 sought to decriminalise such consensual relationships. However, the 2011 draft that became the law did not incorporate such de-criminalisation. This was done at the behest of “stakeholders” to the law - Non-State Actors. This is causing problems now. Then will lowering the Age Range solve the problem? If done so then on what basis?

Now, 12 years after enactment of the POCSO Act, Non-State Actors again have moved the Hon’ble Supreme Court to lower the age. The move is based on the premise today that Citizens of India upon Attaining Puberty cannot control their COMPULSIVE BEHAVIOUR for sexual activity but are not ready for “Marriage”.  

What has changed now in 2025 for such an assumption to be the basis of law?  The justification seems to be the 2013 judgment in Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development by the Constitutional Court of South Africa that A judgment of a foreign court passed in the year 2013 pertaining to a foreign land is sought to be given life to in the year 2025 when India resolutely turned away from such a reasoning in 2012. What has changed now for Indians to embark on the reversal?

Any SOCIAL Movement has to gain sufficient momentum within the respective SOCIAL CULTURE in order to become legislative mainstream. 

The fact that teenage sexual relationships amongst Indians have gained Mainstream has to be presented before the Parliament or the Judiciary through factual material. Has Such Material been Presented before the Court or Parliament?

The Judgment of a Foreign Court based on a culture of a Foreign land cannot be the justification to inject the same in India. The age range under question in the South African judgment was 12 to 16 years!! Will this judgment be used as justification to lower the age range further down the future? The British Raj enacted legislations to curb “marriages” below 12 years. Will we be pushed back to the level accepting 12 years as a bottom range for sexual relationships without marriage? The Supreme Court today is dealing only with “Consensual Sexual Relationship” not “Consensual Marriage” between teenagers!!

If the Judiciary is manhandled by Non-State Actors in ripping up the Constitutional Fabric of Safe Sexual Relationship within the Institution of Marriage, then we need to question the Justice that emanates from such manhandling. 

A Female is always a Victim as per the POCSO Act and BNS 2023. The scenario where another female is a perpetrator is not considered. In the case of LGBTQ relationships, the POCSO and BNS Act are likely to Fail without a doubt. 

Raging Infernos of Desire: 

By delinking Sexual Activity from Marriage a sinister agenda is weaved.  By Making Sexual Activity without Marriage relatively easier and leaning on Sexual Freedom of Married Women as Constitutionally Moral - Sexual Weaponisation is introduced in the Indian Society. 

A Married Adult Woman having more sexual freedom than a man may rampantly abuse her sexual freedom against Men especially against Juvenile Males. It is no longer the case that Women will not abuse the law, The Trends are there for everyone to see. 

“Irrational protection of the “Sexual Freedom of Married Woman” or “reproducting choice of girl child” based on assumptions of Non-State Actors without factual material wreaks havoc on the mental balance of both Men and Women.”   

The Psychological Practitioner Community is frantically warning the public of alarming levels of casual sexual relationships between older women and younger men and how it leads to severe mental trauma for both parties. This leads to a downward spiral of mental health for both men and women from which there is very little chance of recovery except with expensive and rigorous psychological therapy not to mention psychiatric drugs. 

The recent discussions before the Hon’ble Supreme Court of India and the representations of The Amicus Curiae is nothing but a culmination of the Sinister Movement of Non-State Actors outlined here. The Timid Language of The Hon’ble Supreme Court calling for lenient treatment of adolescents under POCSO Act, lenient view of sexual freedom of only women creates an apprehension that Non-State Actors in India are deliberately misleading the law makers and the judiciary towards social catastrophe.

This is an extremely dangerous trend, because Non-State Actors ALONE cannot represent the Indian Public Opinion without any exception. Is it a right qualification for an Amicus Curae in this case to be the owner of a Non -State Actor too, under investigation for irregularities in funds from foreign countries? Is the judiciary made to lose sight of its constitutional compass in this issue?

The Hon’ble Supreme Court going along with the cultural de-linking of Sexual Activity from Marriage is not putting its foot down and declaring CLEARLY to the younger citizens of this country whether male or female or transgender - 

“Wait Until You Are 18” 

Will that not be Constitutionally Moral for India?