Article 21 vs Child Protection: Where Should Courts Draw the Line in Live-in Relationship Cases Involving Minors?
*Piyush Soni
Introduction
Minors have the right to live with or be in the company of a partner of his or her own choosing as per Article 21. The autonomy granted to them by Article 21 to live in together conflicts with the Criminal laws for the safety and protection of the child, i.e., POSCO. One side of this clash is Article 21 of the Constitution, which is invoked to secure personal liberty, a liberty which, over the course of a hundred years of judicial developments, the Supreme Court has extended to include not just freedom from bodily confinement, but a freedom of autonomy, dignity and choice in matters of intimate personal life. The POCSO Act sets the minimum age of consent for any kind of sexual activity at eighteen years, and treats consent by a minor as invalid, while the definition of rape in the Bharatiya Nyaya Sanhita, and the age of marriage in the Prohibition of Child Marriage Act, support this stance. A minor entering into a live-in relationship, usually after elopement from the family, is a common case before courts in habeas corpus proceedings, POCSO prosecutions or child protection proceedings, where the court is required to determine, whether that minor's expressed desire to be with someone is an expression of constitutional autonomy or is within the state's protective mandate?
Background and Context
The POCSO Act of 2012 was passed because of the realization that there was a clear omission in the Indian criminal law: a comprehensive, gender-neutral law to criminalize all sexual offences against children, and the fact that the general provisions on rape in the Indian Penal Code were not fit to address the unique dynamics of child sexual abuse. For example, Parliament took a “bright line” approach in fixing the age of consent at eighteen, in sync with later amendments to the rape provisions of criminal law, and carried forward into the Bharatiya Nyaya Sanhita: any sexual activity with anyone under eighteen is an offence, regardless of his or her consent. This approach is based on a legislative decision that, in principle, minors as a group are not able to give a meaningful consent to sexual activity, due to the imbalance in power, maturity and capacity to appreciate consequences, and that a case-by-case investigation of whether a minor gave a genuine consent could be used by offenders to avoid liability, as the Statement of Objects and Reasons to the POCSO Bill itself makes clear that the parliament reflects the intent of the paramount consideration and welfare of the child at every stage, thereby precluding the consent of a child below age of 18 as valid consent in sexual activities.
Autonomy Against the Protective Mandate: Article 21 Jurisprudence
It is best to understand the constitutional aspect of this tension in the context of what has been protected by the constitutional doctrine of Article 21 autonomy in the process. The right to choose a life partner and to live together without a formal marriage has been recognized by the Supreme Court in the case of the S. Khushboo and Lata Singh, involving two adults who have reached legal age have the freedom to live together without marriage. According to the Supreme Court in the aforementioned judgments, societal obligation won’t make in illegal. This dimension of personal liberty has been held to operate against interference by family members, and not only by the State. In cases where an adult has invoked this jurisprudence when he or she has objected to parental or community intrusion into his or her selection of a partner, courts have been generally receptive to granting the adult protection, such as on a habeas corpus basis against an unlawful confinement by disapproving families. The problem is that this jurisprudence is built around adult autonomy, and when it is extended to minors, whose legal capacity is explicitly limited in contract, marriage, and now under POCSO, this relationship's sexual dimension raises a distinct question: is a minor's autonomous interest in choosing a partner and a living arrangement the same as an adult's?
In the real world, courts dealing with such a live-in relationship have provided varying responses to this question. Habeas corpus cases brought by minors, or by their partner on their behalf, seeking protection from forcible separation, by disapproving families, have in some cases been allowed, especially when they are nearing the age of majority, and are expressing a clear and apparently voluntary desire to stay with their partner, and where the court has taken account of the minor's developing capacity and the dangers of being forced to return to an unfriendly family environment, as held in the case Devu G. Nair v. State of Kerala, the Supreme Court issued the guidelines regarding the Habeas corpus involving intimate relationship. That the minority age cannot be used as the threshold to dismiss the Petition filed against illegal detention by natal family; other aspects should also be considered. Further in the case of Harmeet Singh v. State of GNCT Delhi, the Delhi High Court have the similar view point. However, when faced with a parallel prosecution under POCSO for the same underlying relationship, the courts have been generally compelled to apply the strict liability consent bar, resulting in an odd situation where the choice of living arrangement by a minor can be judicially protected in one prosecution but still be prosecuted, and potentially imprisoned, in another for the same facts.
Contemporary Developments
Much of the debate about the reform that has come since has focused on the notion of close-in-age (also known as a “Romeo-Juliet”) exception, a proposal the Supreme Court itself invited Parliament to consider in State of Uttar Pradesh v. Anurudh & Anr., which is modelled loosely on provisions in some other jurisdictions, that sexual activity between persons within a certain age span (two to three years is the figure generally proposed) would not be subject to the strict rules of the Act, but the full force of the statute would remain in force where there was a meaningful age gap or a meaningful power imbalance. To date, the Union government has insisted that it would not be able to accept a change to the age of consent, warning that any dilution could expose minors to exploitation and make it harder to prosecute child marriage, particularly in regions where the practice persists despite the law.
Critical Evaluation
The main analytical challenge in the current model is that it merges two types of cases which, in terms of the harm they cause, are quite different: First, when an adolescent is exploited by an adult in a situation of power or authority; the second involves when two adolescents, of similar age and maturity, are in a consensual romantic relationship, where the power dynamic and vulnerability might be considered different from where an adolescent and an adult are having a relationship. Treating both the situation alike can be obscure and adjudicating the matters from a statute designed to correct the former will inevitably have the consequence of producing unpleasantly distorted results if it is mechanically applied to the latter, and the pattern of courts reaching for the Article 142 relief, sentencing leniency, and selective quashing to prevent an unfair result in cases involving adolescent relationships is evidence enough that this bright-line rule has been analytically overextended given today's state of the law.
The Case for Caution
Yet the case for reform is not one-sided. Any reform, meanwhile, should be undertaken with great care, as the government's opposition to reform implies. India's reported instances of disguised elopement, child marriage, and coercion within families or communities, especially when family or community dynamics may be at play that will weaken a minor's expressed wishes in a way a court may only be able to sense. This distinction is sometimes not apparent on the face of a habeas corpus petition or a bail application and any reform must include robust safeguards that ensure that a 'protective exemption' does not turn into a 'protective gap' including the ability for the minor to be interviewed by the court without any family or partner influence, a welfare assessment requirement, and a strict liability rule on all applications where there is a meaningful age and/or power imbalance.
Recommendations
Parliament should not simply maintain the existing specific strict liability standard but rather introduce an exception to the standard for a very limited age range with the condition that there is no authority, trust or significantly different power between the parties involved. Such exemptions should always include a compulsory, independent assessment of the minor's welfare by trained child welfare officials, not to be assumed from testimony in a court of law, to prevent coerced or family-induced relationships from being mistaken as free choices. This directly answers the government's fear of a backdoor to child marriage: an independent welfare check, rather than reliance on the couple's testimony, is what catches coerced or family-arranged relationships before they're mistaken for genuine, close-in-age choices. There should be a consistent and structured approach when reaching decisions in live-in relationship cases involving minors, and when considering evidence of the age difference, whether there has been any exploitation or coercion, and whether the minor has been able to make his or her own wishes known, and give them due consideration, as opposed to the present scenario where cases are disposed of by the ad hoc granting of extraordinary equitable relief where the individual judge sitting on the case will make the decision. Lastly, there should be a greater degree of procedural coordination between concurrent habeas corpus and POCSO proceedings in the same case to avoid making conflicting findings as to whether the same relationship is protected autonomy or criminal exploitation. Parliament should adopt a close-in-age exception for 16–18-year-olds with a gap under three years, conditioned on a mandatory CWC welfare assessment binding on both the POCSO Special Court and any concurrent habeas corpus proceeding.
Conclusion
The conflict between Article 21 autonomy and POCSO's protective mandate in the context of live-in relationships involving minors is a real and unresolved issue before Indian law; the statute is a bright-line rule, and a body of judicial opinion has evolved that has recognized live-in relationship cases as qualitatively different from the harm POCSO's purpose was created to prevent. The Supreme Court's recent invitation to Parliament in State of Uttar Pradesh v. Anurudh & Anr. (2026) to consider a Romeo-Juliet clause is therefore an important recognition that the current position is analytically strained, but the direction to move towards reform must be carefully taken, leaving in place robust protections from genuine exploitation whilst allowing courts to reach such a conclusion in the right and carefully managed circumstances in which the law is currently positioned.
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