Supreme Court: In the present case, where the appellant was convicted under Sections 363, 366 and 376 of IPC for coaxing a minor girl into marriage and subsequent physical relationship, the Division Bench of Dipak Misra and Dr. A.K. Sikri, JJ., denied the appellant’s request for reduction of his sentence on the grounds that, consent of a minor girl for sexual intercourse does not amount to consent at all, because at the young age of 16 a girl can be easily lured into taking such actions without a second a thought towards the future implications. Therefore, consent given by a minor for sexual intercourse cannot act as a mitigating circumstance for reduction of sentence in a rape case, for even if consent of a minor girl exists, the other partner in the sexual act is treated as a rapist under Section 375 (Sixthly) of IPC. The Court further added that if minor girl’s consent is considered as a mitigating circumstance, then the future consequences of such observation might be severe.
In the present case, where the offence took place in the year 1993 when the prosecutrix was a minor, the appellant was held guilty by the Trial Court, which was later affirmed by the High Court. The appellant pleaded before the Court that as a result of a love affair between the appellant and the prosecutrix the sexual intercourse between them was consensual. The appellant further pleaded that at present the prosecutrix is happily married whereas the appellant is a poor man and the sole breadwinner for his family, therefore as a mark of sympathy, his sentence should be reduced. The respondents were represented by Hemantika Wahi. Mohan Pandey assisted the Court in absence of the appointed amicus curaie.
In the present case the Court observed that in the event of the prosecutrix’s minority, her consent for the intercourse gets invalidated by the virtue of Section 375 (sixthly) of IPC which was enacted by the legislature with the rationale that a minor is incapable of thinking reasonably for giving a consent, therefore in law a minor’s consent is treated as no consent. A minor consenting to an action such as having a sexual intercourse is not treated as an informed consent as, such consent has not been arrived at with proper deliberations, therefore a duty is cast on the other person in not taking an advantage of the supposed consent. The Court thus stated that, as per the facts of the case, the appellant has committed rape of a minor girl and his sentence under the Penal provisions is well within the parameters and spirit of Protection of Children from Sexual Offences Act. Satish Kumar Jayantilal Dabgar v. State of Gujarat, 2015 SCC OnLine SC 198, decided on 10.03.2015
