Sex with minor wife amounts to rape, says Bombay High Court

The defence of ‘consensual sex with wife’ is not available when the wife is aged below 18, observes Bombay High Court and upholds 10-year sentence imposed on accused

In a significant ruling, the Bombay High Court has affirmed that sexual intercourse with a minor wife aged below 18, whether consensual or not, amounts to the offence of rape.

The defence of ‘consensual intercourse with wife’ cannot be accepted under the law, observed the Single Judge of the Nagpur Bench, Govind A. Sanap, while upholding the 10-year sentence imposed on a 24-year-old man, who was arrested in 2019 on a complaint of rape filed by his wife.

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Earlier, a sessions court had convicted him on rape charges under the Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code. 

“In view of the law laid down by the Supreme Court, the argument that intercourse by the appellant [the accused] with the victim being his wife would not constitute rape or penetrative sexual assault, cannot be accepted. It needs to be stated that sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not,” said the order passed by the High Court on November 12.  

The defence of ‘consensual sex with wife’ is not available when the age of the wife or the girl, who is alleged to be the wife, is below 18 years of age, and non-consensual intercourse with a wife below the age of 18 is rape, Justice Sanap said.  

The accused and the girl were in a relationship for four years and were neighbours. When she got a job in a nearby town, the accused followed her there and eventually coerced her into sexual intercourse, leading to pregnancy. When she asked him to marry her, he arranged a fake marriage in a rented room, where they exchanged garlands in the presence of a few neighbours. Later, he forced her to undergo abortion, which she refused. He then began to physically assault and abuse her. He also refused to accept the child and accused her of getting pregnant from another man.  

The complainant eventually realised that it was a fake marriage, and his intention was only to sexually exploit her. She then lodged a complaint with the Child Welfare Committee (CWC) under the Wardha police. Evidence such as the child’s birth certificate and DNA report, corroborated the girl’s statement. 

Convicted under POCSO

In defence, the accused said it was consensual sexual intercourse because they were husband and wife. He challenged the September 9, 2021, judgment of the sessions court that convicted him under the POCSO Act and the IPC. 

Dismissing the arguments by the accused, Justice Sanap observed that this submission could not be accepted for more than one reason. “In this case, the prosecution has proved that the victim on the date of commission of the crime was below 18 years of age. Even if it is assumed for the sake of argument that there was a so-called marriage between them, in view of the allegations made by the victim that it was sexual intercourse against her consent, it would constitute rape. On re-appreciation of the evidence, I am satisfied that the sessions court judge has not committed any mistake, and his findings on all the counts are supported by cogent and concrete reasons. I do not see any reason to discard and disbelieve the evidence on record. As a result of this, I do not see any substance in the appeal.” 

Published - November 15, 2024 10:36 pm IST