According to the capital Law of the country, a sexual encounter of a minor girl, willing or not, is considered sexual assault not with standing her choice! To get a clearer account of where the legal provisions stand at present in our country when it comes to teenage pregnancy, we got in touch with Nipun Saxena, advocate, Supreme Court of India. Here’s the lowdown of what he had to say.
The idea of consent
The problem with the idea of consent is that a woman if not a major is not eligible to give her consent when it comes to sexual activity, says Nipun. The idea of a consenting major is different from the idea of a major. The law changed after the Nirbhaya gangrape case as earlier the age was set at 16, he explained, which was then the age bar for a consenting major. However, the matters got murkier as post that, the age has been revised to 18. “Even though you may have given your consent for a sexual activity, it will be considered rape if you are below 18,” Nipun said.
The definition of rape
It wasn’t just the idea of consent that witnessed a change. It was also the definition of rape. Earlier, only penetration fell under the definition. “However now, the new law says that any form of sexual contact, fingering, oral sex, etc., will also fall within the definition of rape,” he said.
Can a teenager abort?
If a female is pregnant and she is a minor, then as per the law of Medical Termination of Pregnancy section 3, sub clause 4, she does not have the right to terminate the foetus, said Nipun. A minor pregnant will need the consent from her legal guardian to be able to get under the knife.
What about teenage victims of child marriage?
“However, even this clause gets problematic when we come to the subject of child marriage.” In a step that empowers women, law had decided that marriages in the age frame of 15 to 18 years are considered voidable. This means that the woman holds the right to nullify the marriage when she attains majority,” Nipun explained. However, what about a pregnancy that may ensue in that time? While the age of a consenting female has been raised to 18, the law has not been revised in case of a married minor girl. The Child Marriage Restraint Act has given the right to consent post 16 years to women. So, this two-year discrepancy raises another milieu of problems.
“I think there is one drastic mistake that the law has made, which is the increase in age of consent from 16 years to 18 years. I think when the woman attains the age of 16 years, she is perfectly capable of making her own decision. If you only relegate the law to its former self, that is reduce the age to 16, then the law is fine,” said Nipun.