‘Consensual sex with girl below 16 also rape’

In a verdict with wide ramifications, especially where the accused in rape cases are seeking leniency on the grounds that the intercourse was consensual, the Punjab and Haryana high court has made it clear that if the girl is below 16 years of age, the other partner in the sexual act is a criminal.

‘A minor girl can be lured into giving consent for such an act without understanding the implications. Such consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action.

Therefore, as a necessary corollary, duty is cast upon other person of not taking advantage of the so-called consent given by a girl who is less than 16 years of age,’ observed Justice Anita Chaudhary.

Justice Chaudhary passed these orders on March 30 while dismissing an appeal filed by a man from Gurgaon district against his conviction for raping a minor girl.

The accused in the case was emphasizing that his conviction should be set aside because the sexual relations with the victim were consensual, THE TIMES OF INDIA reports.

Dismissing his plea, the court made it clear that if the girl is below 16 years, the other partner in the sexual act has to be treated as a criminal.

The law left no choice to him and he couldn`t plead that the act was consensual, the court observed.


Accused had kidnapped the victim, who was around 15 years of age on January 22, 2010.The father of the victim, who filed a complaint before the police, was not aware of the person who was involved.


The girl was recovered on January 30, 2001, and then it appeared that the accused was a mason and was working in the house of the complainant. He was already married and had two children.

He was tried before the district court Gurgaon, which on October 10, 2010, holds him guilty for rape and kidnapping of a minor girl and sentenced to 10 years imprisonment.

Aggrieved by the sentence, the convict had filed appeal before the Punjab and Haryana high court.


His main argument was that the girl had stayed with him, and it was a case of consensual sexual relationship, thus, the court should be lenient to him and he should be released.

Rejecting his appeal, the HC held that a minor is incapable of thinking rationally and whether it is civil law or criminal law, the consent of a minor is not treated as valid.