Mumbai: The Nagpur bench of the Bombay High Court has held that non-consensual intercourse with a “wife” who is below 18 years of age constitutes the offence of rape. The court has upheld the conviction of a man who was sentenced to ten years in prisons for allegedly indulging in sexual intercourse with a minor wife, against her consent.
“Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The non-consensual intercourse with a wife, who is below 18 years of age, is rape,” Justice GA Sanap said on November 12.
The HC was hearing an appeal filed by the man challenging his conviction by the sessions court at Wardha under the provisions of the Protection of Children from Sexual Offences Act (POCSO Act) and the Indian Penal Code for sexually assaulting his underage wife. On September 9, 2021, the sessions judge sentenced him to ten years in prison.
The man took defence that the victim / complainant was his wife and their sexual relationship cannot be termed as rape. Justice Sanap, however, disagreed and observed that consensual sex with the wife cannot be taken when the age of the wife is below 18 years.
In May 2019, the woman filed a complaint that she was in a relationship with the man and despite her refusal, he raped and impregnated her. The duo then lived together in a rented place, where the man pretended to marry her by putting a garland around her. Within a few days, the man initiated on abortion. She alleged that the man made a “farce of the marriage” and repeatedly raped and physically assaulted her.
She gave birth to a baby boy in August 2019. The HC took note of the DNA analysis which showed that the woman and the man were biological parents of the baby boy
In his appeal, the man claimed his innocence claiming that the complainant was his wife and hence, their physical relation cannot be termed as rape and that it was consensual. He further contended that she was not a minor at the time of their “marriage”.
However, the prosecution produced her birth certificate which showed her date of birth as February 2, 2002.
Rejecting his defence, the court noted that the complainant was born in 2002 and was a minor in 2018 when the alleged incident occurred. “In view of the ruling of the Supreme Court, in the case on hand, the defence of consensual sex with the wife cannot be accepted. Even if it is assumed for the sake of argument that there was 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,” Justice Sanap said while rejecting the man’s appeal.
