Even Consensual Sex with a Minor is Rape: Bombay High Court

In a landmark judgment recently, the Bombay High Court bench in Nagpur ruled that a man can be punished for the crime of rape even if he has consensual sexual intercourse with his wife, who is under the age of 18, irrespective of her gender. approval.

single judge Justice Govind Sanap While it upheld the conviction of a man for raping his underage wife, it rejected his argument that sexual intercourse with the victim was consensual and could not amount to rape because she was his wife at the time.

“According to the law laid down by the Apex Court, the appellant having sexual intercourse with the victim’s wife will not constitute rape or sexual assault and is unacceptable. “It should be noted that sexual intercourse with a girl under the age of 18, whether married or not, is rape.” the judge said in the Nov. 12 order.

The judge stated that if the age of the wife or the girl alleged to be the wife is under 18, it is not possible to defend consensual sexual intercourse with the spouse, and a spouse who is under 18 is called rape.

“According to the decision of the Supreme Court, in the current case, the defense of consensual sexual intercourse with the spouse is unacceptable. Even if the so-called marriage between them is assumed as evidence, the victim’s claims that there was sexual intercourse without her consent will constitute rape.” The judge held.

The judge was hearing a criminal appeal filed by a man who had challenged the September 9, 2021 order of a court in Wardha district, which convicted him on rape charges and provisions of the Strict Protection of Children from Sexual Offenses (POCSO) Act.

The appellant was arrested on May 25, 2019, after a minor girl, who was 31 weeks pregnant at the time, filed a case against him. The girl’s case was that the duo was in a love affair and the plaintiff forcibly had sexual intercourse with her and later continued to do the same by giving a false promise of marriage. She became pregnant and asked the appellant to marry her. However, he rented a house and exchanged garlands with her in the presence of the neighbors there, making her believe that she was his wife.

However, he later started insisting the complainant to abort the pregnancy, but she refused and attacked him. She then returned to her parents’ house where the appellant staged scenes and assaulted her twice. It was then that the victim realized that the appellant was just making a marital farce and was sexually exploiting her as he was now neglecting her and even denying paternity of the child in her womb.

The victim, in her cross-examination before the trial court, categorically admitted that she had lodged a complaint with the Child Welfare Committee (CWC) section of Wardha Police and had earlier admitted to this complaint by referring to her photographs with the appellant (wearing garlands on each other). She told the authorities there that he was her husband.

Based on this admission, the appellant argued that this was a consensual sexual act with the victim’s husband.

“In my opinion, this statement is unacceptable for more than one reason. In this case, the prosecution has proven that the victim was under 18 years of age at the time of the crime.” the bench said in turn.

Further, the bench stated that not only the evidence of the Medical Officer but also other evidence such as birth certificate, DNA report etc corroborated the evidence of the victim.

“Upon reconsideration of the evidence, I am satisfied that the Trial Judge made no error and that his findings on all charges are supported by convincing and concrete reasons. I see no reason to disregard and disbelieve the evidence. I therefore see no merit in the objection,” he said. Judge Sanap said that the objection was rejected.

Appearance:

Advocate Parvez Mirza was appointed on behalf of the Appellant.

The State was represented by Additional Public Prosecutor Swati Kolhe.

Lawyer Shubhada Phaltankar appeared on behalf of the Victim