Sex with a minor wife is rape; marital rape exception doesn’t apply: Bombay High Court
The Nagpur bench of the Bombay High Court recently ruled that, even in cases when it is voluntary, sexual contact between a man and his wife who is younger than 18 would be considered rape.
While sustaining a man’s 10-year severe prison term imposed by a trial court, Justice GA Sanap said
“Intercourse between the appellant and the victim, who is his wife, would not be considered rape or penetrative sexual assault under the legislation established by the Apex Court, and so cannot be permitted. It should be mentioned that having sex with a girl under the age of eighteen is rape, regardless of whether or not she is married. When the wife or the girl who is accused of being the wife is younger than eighteen, the defence of consenting intercourse with the wife is not viable.
Thus, the Court upheld the ruling of the Supreme Court in Independent Thought vs. Union of India and others, which interpreted the Indian Penal Code’s marital rape exception for spouses under the age of 18.
The current case began in 2019. For perhaps three or four years, the accused and the young girl had been romantically involved. As their connection developed, the victim started working in a shop to provide for her family. Later, she rented a room in Wardha, where the man often visited her.
He persuaded the victim to have sex despite her initial resistance, and he eventually forced her to do so by promising to have her marry him.
Believing his promises, the victim agreed to the relationship, thinking they were in a committed partnership. But when the victim got pregnant, things got out of hand.
A few neighbours then attended a fictitious marriage ceremony that the accused had set up in a rented room. The victim subsequently characterized this incident as a farce that was carried out without the required formalities and had no legal authority.
After this fictitious marriage, the accused persisted in controlling the victim by demanding an abortion and rejecting any parental responsibility, arguing that she had gotten pregnant with someone else.
Following several months of suffering, the victim finally told the authorities about the situation, which resulted in the accused being charged.
During her cross-examination in the trial court, the victim specifically admitted to filing a complaint with the Wardha Police’s Child Welfare Committee (CWC) department. She told the officials that the accused was her husband, citing pictures of her with him in which they were seen garlanding one another.
The defence contended that the sexual conduct was consensual because it involved the victim and her husband, based on this admission.
The Court, however, firmly stated that the prosecution had proven beyond a reasonable doubt that the victim was underage at the time of the alleged acts and rejected these objections.
“This submission, in my opinion, cannot be approved for multiple reasons. In this instance, the prosecution has demonstrated that the victim was younger than eighteen on the day the offence was committed. Given the victim’s accusations that it was sexual contact against her will, it would be considered rape even if it were assumed for the purposes of argument that they were married.
The appellant was represented by advocate Parvez W. Mirza.
Swati V. Kolhe, an additional public prosecutor, represented the State.
Shubhada Phaltankar, an advocate, represented the victim.
