185 Chapter X

185 CHAPTER X. THE AGE OF CONSENT OUTSIDE MARRIAGE. 398. Nature of offence.—The problem of suggesting a proper age of Consent outside the marital relation, i.e., an age below which the consent of the girl will not be a defence on a charge of rape, is free from many of the diffi culties and complications which surround the problem in side the marital state. Considerations of religion, of Shastric injunctions, of the rights of a husband or of the privacy of family life, have obviously no place in the solu tion of this problem. It depends for its solution mainly on the consideration as to what is the proper age till which a girl in this country needs the absolute protection. of the law against a stranger, without any reference to her own wishes or inclinations in the matter. 399. Severity of ancient laws.—So far from religious injunctions being a barrier to an advance, as in marital cases, by legislation, the texts of both Hindu and Islamic Law prescribe the severest penalties for an offence of this nature. Nor does society look with anything but the deepest horror on the ravishment of a woman by a stranger. In fact the sentiment against the offence is so strong that some witnesses have suggested that consent should not be a defence, whatever the age of the woman may be. No legislation can successfully eradicate immorality or bring about an ideal state of society; it can only afford all reason able protection to the people. Hence the need arises for defining till what stage a girl requires the protection o% the law and when she should be deemed capable of giving her consent even to so reprehensible an act. 400. Evidence in favour of advance.—The evidence re corded by us conclusively proves that there is grave dis satisfaction with the law as it stands at present. Wit nesses from all Provinces, and of all classes and commu nities have been practically unanimous in stating that the present age-limit is unreasonably low, and that there is urgent need for an advance. While some have suggested that the age may be raised to 16 years, and others to 21, a large majority has definitely declared in favour of 18 as 186 the proper age which the legislature ought to fix. Most of the witnesses who in their written statements suggested 16, readily and willingly agreed to 18, when orally examined before the Committee. From the trend of evidence of those who have appeared before the Committee, it is not unreason able to infer that the large majority, even of those who have opined in favour of 16 but have not appeared, have been influenced in their judgment by the bill introduced by Sir Hari Singh Gour recommending 16 as the age-limit and referred to in our questionnaire, and that they too would have gladly favoured the higher age limit of 18. Even so, it has to be admitted that there are some—though very few—who would not favour an age-limit exceeding 16 years, and fewer still who will not have any change at all. 401. Reasons for advance. Physical and Physiologi cal.—The reasons for an advance are fairly clear and have been put forward with great vigour by those who have advocated an advance in the age. Physically and physio logically a girl at 14 is not fit for the sexual act, and still less for the possible consequences of such an act. All the reasons that have been advanced with reference to marital cases from a medical point of view, apply with equal if not greater force in this case. It has'been shown there that 16 years is the bare minimum, at which according to medical opinion, consummation may be justifiable or at any rate maternity may be reasonably safe. Whatever reasons may be urged or found expedient for lowering the age of Consent in marital cases, despite this strong medical testi mony, and whatever grounds may exist for compromise where the husband is concerned, such reasons are wholly out of place and can have no application in the case of a stranger. It is clear therefore that on purely medical grounds alone, the age ought to be raised at least to 16. 402. " Consenting Mind " absent,—But there are- other and more compelling reasons not merely for an ad vance in the age but for a larger advance than that above indicated. Under the existing law, where the woman con sents to the act, the charge of rape cannot be sustained against a stranger. The question naturally arises, at what age a girl is capable of giving her consent to the sexual act. ' Consent " has been defined as " an act of reason accompanied with deliberation, the mind weighing as in a balance the good and evil on each side." It is not suffi- 187 cient that the actual nature of the act is known and is acquiesced in. It is no doubt true that a girl of 16 may be presumed to know what is meant by the act. But the question really is not merely whether she knows the phy sical nature of the act but whether she is in a position to comprehend the serious consequences of the act, physical and moral. Is she in a position to realise the social de gradation, the utter aloofness to which she would be sub ject in case she were found out? Can she realise the moral consequences of the act and the likelihood of the birth of an illegitimate offspring? It is pointed out that such a knowing state of mind cannot safely be predicated at 16 and that the law itself has given an indication as to when such knowledge or a capacity for it can be presumed. It has declared that an infant' below the age of 18 years is incapable of entering into a binding contract for the dis posal of her property because the disposing mind is not mature enough at that age. If therefore the disposing mind is still wanting at an age lower than 18 for the disposal of property, can it be said to be available for the disposal of what is far more precious, the disposal of one's own person? It seems therefore just and reasonable that the legislature should make an advance and fix an age not less than 18 below which the consent of the girl will be inoperative. 403. Social changes and need for greater protection.— There are other equally valid grounds advanced for an increase in the age. The Social system is undergoing a rapid change. The spread of education among girls has given them a greater freedom of movement, even among communities which observe Purdah, than was vouchsafed to their predecessors a generation back. Schools and col leges are to-dav being attended in vastly superior numbers by girls of tender ages. The middle and lower classes are engaged in pursuits and occupations which a generation back would not have attracted their attention. As clerks and typists in offices and as factory workers in big in dustrial centres, girls below 18 are employed in much larger numbers to-day and such employment has necessarily placed them in a position where they need the utmost protection. The migration into cities and the gradual loosening of the tie of Joint Family, referred to already, have also placed girls of tender age, both married and unmarried, in a less 188 sheltered position than before. Under these altered cir cumstances of society, it has become increasingly necessary that law should step in and afford a greater protection than it has so far given. The age of 18 does not appear to err on the side of excess in the light of these circumstances. 404. Serious consequences of offence.—The offence itself is of such a nature, and the consequences to the girl are so disastrous in this country, that the protection of the law should be continued as long as possible. The social de gradation to which a girl who has the misfortune to be involved in such an offence is subject, has already been referred to. Even where the girl has been wronged against her will, she is sometimes not even taken back into the family, particularly among the middle or higher classes. A stigma attaches to her all through life where she is un married and it is often very difficult to secure for her a suitable husband. In many cases, however innocent she may be, the husband discards her and her position is even worse where she is suspected to be a consenting party. The punishment of the law is not as severe as the penalties imposed on the girl by society and public opinion. It seems to be only fair that where such serious consequences are involved, the protection of the law should be afforded to the girl up to a reasonably high age. 405. The amended law not to apply to unions before marriage in Assam and elsewhere.—It has been brought to our notice that, in communities where courtship before marriage is permitted, it may cause hardship if the age is fixed so high as 18. In particular in the Assam valley, (Upper Assam) there is evidence of a practice of young Assamese living for a few days in the jungles as husband and wife and on their return to their villages getting married with the approval of their parents. It is not our intention, however, that these cases should be dealt with under the proposed law.

Load more