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Swami Sadashiva Brahmendra Sar (Nil)     02 August 2009

Consenting age in kidnapping and rape cases

Dear friends, consent of a child or girl over 16 yrs of age is a valid defence against  charges of kidnapping and rape. It is inconsistent to other laws relating to consent. Moreover, consent in these type of acts is rather a sensitive matter as compared to consent in other matters. Should it be enhanced to 18 yrs i.e. the consenting age in civil matters?

The Allahabad High Court while dismissing an appeal against conviction has posted the matter on 31st August, 2009 for an statement of Attorney General of India and Advocate General of the State regarding the stand of government regarding amendment in these old provisions. This appeal was filed on the ground that age of the girl was 17 yrs and she had consented. ( source – Hindustan, Hindi daily).

 



Learning

 11 Replies

A Truthseeker ( A retired Indian citizen)     02 August 2009

in my view the age of the victim is fixed keeping inmind his/her ability to judge the welfare of himself. if the age of giving consent is kept too low the party would not develop his capacity to discern good and bad. on the other hand if the age is fixed high the otherwise matured person would be debarred from entering into an agreement unnecessarily. so, when the age of majority is taken as 18 years it should also be in cases of kidnapping and rape.

Parveen Goyal (Advocate)     02 August 2009

pls see  sec 199 of CRPC (amendment 2008)

Swami Sadashiva Brahmendra Sar (Nil)     02 August 2009

Thanks to learned Maiti sir and Goyal ji. I request to mr goyal to kindly post the amended provision and also to clarify about status of its enforcement.

VIPIN SHARMA (Mob.-9610000043) (ADVOCATE)     02 August 2009

I agree with Hon'ble Maiti Sir.

Vipin Sharma, Advocate

337, Akron Ka Rasta, Kishanpole Bazar, Jaipur-302001

Mob.-9610000043

Rajan Salvi (Lawyer)     05 August 2009

Can age be the only deciding factor ? I feel it is not . Such line of  thinking turns a bling eye to the social status , timidity, backwardness, education , atmosphere in the house, economic status, past experiences in the life of the person giving consent , There is no such thing as a free will. It seems as if a person has a free will, but circumstances force a person to act in one way or the other. MAY AISA KYU HO?  

Consent obtained by fraud, threat , mis-representation or coercion is no consent. It is unbeklievable that a girl of 15 years, 12 months and 30 days has no brains to give consent and immediately on the next day she becomes 'ENLIGHTENED' [  Like after Eve eating the forbidden apple and gaining knowledge].

Anish goyal (Advocate)     21 August 2009

I would like to clarify on the issue taken by Mr. GOYAL. Section 18 of code of criminal procedure (amendment act )2008 read as ." Amendment of section 198. - In section 198 of the principal Act, in sub-section (6), for the words "fifteen years of age", the words "eighteen years of age" shall be substituted." so section 198(6) will be read after amendment is enforced "no court shall take cognizance of an offence under section 376 of IPC, where such offence consists of s*xual inter course by a man with his own wife, the wife being under fifteen years of age, if more than year has elapsed from the date of the commission of the offence." but the amendment act is not yet enforced. but its enforcement will create a direct confliction in between section 198(6) CRPC as amended and section 376 IPC exception " s*xual intercourse by a man with his own wife, the WIFE NOT BEING UNDER FIFTEEN YEARS OF AGE, is not rape." can any learned member can take this issue further.

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     22 August 2009

The amendment is about to finalized and implementing but the age is prefered in Solicioter office as 16 years instead of 18. But it will be applicable in case of love marrige or with his wife. In case of 376 agaisnt the wishes of girl, the age is same.

Your further clarification is welcome at nominal fee at;

adv.kamal.grover@gmail.com

Advocate

M:09814110005

CHANDIGARH (INDIA)

We also have branches all over India.

With Regards

1 Like

Swami Sadashiva Brahmendra Sar (Nil)     22 August 2009

Dear Kamal Grover !

1.  Kindly see the question again. it is an academic question and not related to me or my client. from whom are you asking fee fee?

2. I myself and all friends who have replied the query, are Advocates and probably much more experienced than you.

3.Thank you for your kindness for asking nominal and not high fee.

 

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     22 August 2009

Sorry Tripathi ji,

But it is my already typed address and i paste only

and due to hurry, i did not see the such a senior memebre like you.

I apolozise but you should also be not so rude. You are talking to the new generation and you are our ideal, if you behave like an illetrate person and words with fighting then you can imagine how we all will treat with each other.

Regards and sorry once again.

Swami Sadashiva Brahmendra Sar (Nil)     23 August 2009

OK Mr Grover. Its all due to speedy atmosphere. action has no time to think. the quote " think before you speak" has become out dated. now, intelectuals are abendoning the thinking and they  are considering it as a job for rustic people. so, it is not strange that  you are again in hurry and comparing me with an illiterate person.

Yesterday, in Allahabad University, a National Tax Moot Court Competition was inaugurated by Hon Mr. Justice Markandey Katju (Judge, Supreme Court ).   one of the organizers of Moot Court Mr. Bharat ji Agrawal, National President of  All India Fedration of Tax Practitioners quoted a couplet :

"Pahuch chuke jo manjil tak, unko to nahi hai naje safar,

  do kadam abhi jo chale nahi, raftar ki bate karte hain"

     However, often I do not diferentiate between illiterates and so called highly  educated. many a times illiterates are better than intelectuals. diference between fighting of illiterates and intelectuals lies in causes of disputes and method of fighting. the illiterates use their heart and body whereas, intelectuals use their mind and diplomacy. It is also a notable point that heart can be changed / transplanted but technology for transplantation of mind or brain is yet to be invented. Therefore , I never undervalue an illiterate. Great saint Kabir was illiterate but was greater than so called pandits and mullas. To my comprehension, his couplets are summary of all upanishads.

Anish goyal (Advocate)     24 August 2009

Grover sir the act has been passed. So i think it has been finalised but you are right to say it is not yet implemented. Tripathi sir i think my question remained unanswered. Sir please think over it.

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