Must the prosecutrix be held to be a major, with valid consent, where her age is not proved beyond reasonable doubt?

Paragraph 11The entire evidence of P.W.3 would clearly indicate that she had love affair and in fact, there was a consensual act which resulted in physical relationship with the accused. In fact, she voluntarily accompanied him. Though it was stated that it was only the accused who called her over phone to come to the bus stand, absolutely there is no whisper whatsoever with regard to the phone number of the cell phone. The mobile phone has not been recovered and the call details were not produced to show that P.W.3 was enticed by the accused and compelled to come to bus stand. The prosecution has projected the case as if P.W.3 was a minor and if the age of P.W.3 was proved beyond reasonable doubt, the consent of the P.W.3 becomes insignificant as far as the offence is concerned. Any consent of the minor below aged 18 years is not a valid consent in the eye of law. In such a situation, even though P.W.3 had voluntarily gone with the accused and had physical relationship by consent, still it will attract the offence against the accused, since the consent is not valid in the eye of law.

Paragraph 17Therefore, when the age itself has not been established and there is doubt about her minor status and further when P.W.3 has given Ex.P.2 seeking protection wherein she has indicated that she was in love affair with the accused for more than three years and she has voluntarily gone with the accused and has taken a conscious decision and lived as husband and wife, these facts clearly show that every act of P.W.3 was the result of her voluntary and consensual act. Further, when the prosecution has failed to prove that she was minor, it has to be held that she is only major. In such view of the matter, when she is a major and she accompanied the accused voluntarily and with her consent, there was physical relationship, the charges framed as against the accused have to fail. In this regard, it is useful to refer to a decision of the Hon’ble Supreme Court in S.Varadarajan Vs. State of Madras reported in 1964 SCC OnLine SC 36 and paragraphs 14 and 15 are relevant which reads as follows: ‘14. The last case relied upon by the High Court is Ramaswami Udayar v. Raju Udayar which is also a case under Section 498 IPC. In that case the High Court has followed the two earlier decisions of that court to which we have made reference but in the course of the judgment the learned Judge has observed that it is not open to a minor in law to abandon her guardian, and that, therefore, when the minor leaves the guardian of her own accord and when she comes into the custody of the accused person, it is not necessary that the latter should be shown to have committed an overt act before he could be convicted under Section 498. The learned Judge has further observed: