Nagpur: The Nagpur bench of the Bombay High Court upheld the conviction and 10-year imprisonment to a man, who claimed to be the husband of minor, for the offence of rape, saying sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.
Justice GA Sanap held this while dismissing an appeal of a 24-year-old man convicted and sentenced to ten years of imprisonment for raping the minor under the provisions of the Protection of Children from Sexual Offences (POSCO) Act.
Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not: High Court
“The sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The defence of consensual sex with the 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,” the High Court said.
Man started avoiding the victim after she became pregnant and insisted for abortion
The victim and the convict were neighbours and had a love affair for three to four years prior to lodging of the case by the victim. As per the prosecution, the convict committed forcible sexual intercourse with the victim resulting in the pregnancy of the victim. Following the pregnancy, the victim reminded the convict about his promise to marry her and they started residing together at a rented accommodation and the convict married her by garlanding her in a rented room in the presence of some of the neighbours. The convict later started avoiding the victim and started insisting the victim for abortion. The victim lodged a case against the convict after realizing that he had made a false promise of marriage with her and he made a farce of marriage and committed sexual intercourse with her under the false promise of marriage.
Victim has admitted that she was married with convict and hence, sexual intercourse would not constitute rape: Counsel
The counsel representing the convict argued that the victim has categorically admitted that she was married with the convict and therefore, the sexual intercourse by him with the victim, if any had taken place prior to her attaining the age of 18 years, would not constitute rape and the offence of penetrative sexual assault as defined under section 3 of the POCSO Act.
Even defence of marriage would not save convict from the dragnet of the offence of rape: State
The State submitted that even if it is assumed for the sake of argument that there was marriage between them, the same by itself would not save him from the dragnet of the offence of rape, defined under section 375 (rape) of the Indian Penal Code (IPC), and the offence of penetrative sexual assault, defined under Section 3 of the POCSO Act. The State further submitted that the victim has categorically stated that the appellant, under the false promise of marriage, committed sexual intercourse with her and the prosecution has proved that the appellant in order to save himself had created a farce of marriage by garlanding the victim.
High Court took note of the apex court verdict on the issue
The High Court said that the legal position has been enunciated by the Supreme Court on the issue as to whether the sexual intercourse between a man and his wife being a girl between 15 and 18 years of age s rape and in view of this, 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, the High Court added.
“In the backdrop of the law laid down by the Hon’ble Apex Court, the submission that sexual intercourse by the appellant with the victim being his wife would not constitute rape or penetrative sexual assault, cannot be accepted. It needs to be stated that the sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The defence of consensual sex with the 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. The non-consensual intercourse with a wife, who is below 18 years of age, is a rape,” the High Court said while dismissing the appeal.
