Now, confusion over age of consent
5 Jul 2009, 0413 hrs IST, Manoj Mitta, TNN
NEW DELHI: For all its efforts to rationalize an archaic law with its historic verdict on Section 377 of the IPC, the Delhi high court could not
help adding to the confusion on what constitutes the legal age for consent for homosexuals and heterosexuals in various situations. The consent age fixed by the high court for homosexuals is two years higher than the statutory bar for heterosexuals engaging in the common form of lovemaking, namely, "penile vaginal sex". While decriminalizing consensual sex between adult homosexuals, the HC verdict has fixed the consent age for them as 18 years. "A person below 18 would be presumed not to be able to consent to a sexual act," it said. This is a departure from the consent age of 16 years for a woman fixed by Section 375 IPC for a man to escape the charge of rape. Conscious as it was of the discrepancy it was introducing between homosexuals and heterosexuals, the court clarified that a long-term solution would be the Parliamentary amendments to IPC recommended by the 172nd report of the Law Commission, which "we believe removes a great deal of confusion." Since the judgment for the time being allows Section 377 to continue to govern "penile non-vaginal sex", it has created an anomaly in the consent age even within the heterosexual context. For, if it is penile vaginal sex, the consent age for the girl remains 16 years (as provided in Section 375) and if it is penile non-vaginal sex with a woman (anal or oral sex), the consent age for her would be 18 years (as laid down by the HC verdict). Consider the comic fallout of the judgment on a young heterosexual girl. At 16, she can give consent to have penile vaginal sex. But to engage in anal or oral sex she will have to wait for two more years before she can give consent to it. Otherwise, her male partner would fall foul of Section 377 and risk life imprisonment in terms of the HC verdict which forbids penile non-vaginal sex with a woman under 18. This comes on top of an existing discrepancy in the consent age for a married woman. While the consent age for pre-marital penile vaginal sex is 16, the husband has license to engage in such an act with his minor wife even if she is as young as 15. Though the minimum marriageable age for women is 18, the marriage with an under-aged girl is not per se invalid. For, under the Prohibition of Child Marriage Act 2006, marriage is "void" only if it was the result of kidnapping or elopement. In the event of sex with his wife under 15, the man is liable to be charged with rape under Section 376. The only concession shown to his conjugal right is that, instead of the usual punishment with a minimum sentence of seven years, the husband will face a maximum term of two years. Thus, with the introduction by the HC judgment of a separate consent age for "unnatural sex" or penile non-vaginal sex, the legal code for lovemaking has become more complex than before.