Vivasvan Prakash, Advocate,
Allahabad High Court

"I believe the rights of women and girls is the unfinished business of the 21st century."

–Hillary Clinton

The title is not new so does the issue over here as in the 21st century when the world is touching new heights single day and becoming new, simultaneously, there lies a struggle for the betterment of the status of women which is very vast. It includes multiple aspects and one of such aspects is the crime against women. By virtue of Art. 15(3) of the Constitution of India (hereinafter to be referred to as COI), the Hon’ble Parliament of India is trying their level best to bring improvements and growth in every perspective possible; as India is a signatory to Conventions on Elimination of Discriminations Against Women (CEDAW).

Further, there are various aspects which are prevailing in contemporary times that require the attention of the world. Such aspects are as follows:

·      Necrophilia and rape laws

·      Teenage Couples and POCSO Act, 2012

·      Age of consent


Necrophilia, in general, is considered a psychological disorder in which the person gets indulges in sexual intercourse with a body of a dead person. In Indian Penal Code (hereinafter to be referred to as IPC or code), the recent amendments included all kinds of unnatural sexual intercourse via provisions of sec 375 and 377 of the said code. However, when the court is encountered with such an offence of necrophilia then the courts have no statutory provision in the code to settle down the culpability of the accused.

In one of the recent cases, which came before the Hon'ble Karnataka High Court, the court felt the need for amendments in the code to include necrophilia and hence, directed the central government and law commission to consider the impugned question to bring the incidents of necrophilia either u/s 375 or 377 IPC so that the accused can be prosecuted and sentenced for adequate relief. This has been directed by the court for ensuring the fact that the cardinal principle of criminal jurisprudence is that justice should not only be done rather it seems to have been done.

Because, if IPC is taken into consideration, then in various decisions of the courts the accused has been prosecuted u/s 297 of the code instead of sec 376 or 377 IPC.

It is estranged that the accused who is having such a mental disorder is violating the right of the deceased as enshrined under Article 21 of the Constitution of India as categorically held by the Hon'ble Supreme Court of India in the case of Common Cause v. Union of India; that the right to life under art 21 includes right to die with dignity.

Therefore, when the accused, who is committing such a heinous offence against a deceased person then their fundamental right is also being violated. Furthermore, when the law is interpreted further then it can be seen that the IPC Chapter 4 provides for general defences inclusive of private defences from sec 96 to 106 of the code. Whereby, sec 100 provides that in certain circumstances the victim of the offence enlisted therein can cause the death of the perpetrator, thus, considering the same the deceased on which any forceful exploitation is being committed then the victim is also deprived of the statutory right to protect itself against the perpetrator as provided u/s 100 of the code.


Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred to as POCSO Act) has been passed by the Hon'ble Parliament of India to protect children from any kind of sexual intercourse. However, it has been categorically witnessed that as society is growing very fast which resulted in the development of relationships at a very young age, mostly it is developed at the age of 16-18 years old. POCSO Act, 2012 is an umbrella legislation creating a bubble around the age of the victim, if the victim irrespective of gender who is below the age of 18 years by harmonious constructing the Act, 2012 with the Juvenile Justice (Care and Protection) Act 2015 (hereinafter to be referred to as Juvenile Justice Act, 2015).

In continuation, it should be taken into consideration that the Hon'ble Supreme Court of India in one of the cases has categorically made it clear that the right to love and the right to choose a partner of own choice is a fundamental right enshrined under Article 21 of the Constitution. Therefore, the moot question before every stakeholder is to consider which one should be taken into consideration.

As in recent times, it has been noticed in the courts that the POCSO Act, 2012 is being automatically implied to the other person for the commission of the sexual offence. The main loophole for such attraction of the provisions of the POCSO Act, 2012 is that the consent of a child in the Act, 2012 has no relevance. As per the definition of a child, is "a person who is below 18 years of age".

It can rightly be argued that POCSO Act, 2012 being a special enactment should be given weightage however, one should also consider the fact that the Act, 2012 is in a direct face-off with Art 21 of COI. Further, there are other arguments that POCSO Act, 2012 should be considered a reasonable restriction as fundamental rights are not absolute and they can be restricted if there is any reasonable restriction.

However, some have counterarguments to this argument that when a person commits a heinous offence the Juvenile Justice Act, 2015 provides for trial as an adult presuming the fact that the alleged accused has mental capacity to commit such a heinous offence. Therefore, when on one hand to establish the liability of a person there can be a relaxation of age then why not the same can be taken into consideration to provide rights to persons, so that they can enjoy the abovesaid rights which have been interpreted in art 21 of COI.

It is high time to have a discussion on the above said moot question as the person against whom the provision of Act, 2012 is being levelled then said person is going to be deprived of his reputation, title, freedom, liberty and every other right in the society. One should also realise the fact that in deciding the impugned question the stakes are really high as a balance has to be maintained between rights which have been recognised by the Hon'ble Apex Court while interpreting Art 21 and the whole purpose of POCSO Act, 2012.


Consent in general equated with willingness of a person to enter into any act. However, sec 375 IPC explains that consent and willingness are two different things. Further, sec 90 IPC provides that when a consent can be said to be a free consent whereby, the consent given by any person who is above 12 years shall be considered as a valid consent. But sec 84 of Juvenile Justice Act, 2015 provides that for chapter 16 of IPC, especially for the offence of kidnapping and abduction; the child shall be considered

as a person below the age of 18 years and thus, known as a minor. It is a settled proposition of law that consent shall not be valid when the same has been obtained by a minor.

Considering the abovesaid provisions the legislatures have brought an amendment in the year 2013 whereby, they increased the age of valid consent to 18 years and also, the Hon'ble Apex Court has interpreted the same in a strict sense in the case of Independent Thoughts v. Union of India, whereby, the court said that the Exception 2 to Sec 375 IPC which exempts any person having intercourse with his wife above the age of 15 years shall not amount to rape; as an incorrect and wrong proposition of law.

Further, the above-said decision also laid down the foundations of the moot question regarding the criminalization of the offence of marital rape which is under consideration by a bench of the Hon'ble Supreme Court of India.


After perusing the arguments and provisions of different enactments for the time being in force in India and also considering the rampant growth of the social and educational background of the people in India, it is, therefore, be said that in India, the rape laws are somewhere giving loopholes which need to be tackled to protect the society from the above said scenarios and punish the perpetrator adequately and thereby, make a society empowered enough to tackle the said offences.