Even Consensual Sex With Minor Wife Is Rape: Bombay High Court

In a significant ruling, the Bombay High Court bench at Nagpur recently held that a man even if indulging in consensual sexual intercourse with his wife, who is below the age of 18 years, can be booked for the offence of rape, irrespective of the wife's consent.

Single-judge Justice Govind Sanap while upholding the conviction of a man for raping his minor wife, rejected his argument that the sexual intercourse with the victim was consensual and cannot amount to rape since she was his wife, at the relevant time.

"In view of the law laid down by the Apex Court, 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 judge said in the order passed on November 12.

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 judge said, adding, that the non-consensual intercourse with a wife, who is below 18 years of age, is a rape.

"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," the judge held.

The judge was hearing a criminal appeal filed by a man challenging the September 9, 2021 judgment of a trial court in Wardha district, convicting him under charges of rape and provisions of the the stringent Protection Of Children from Sexual Offences (POCSO) Act.

The appellant was arrested on May 25, 2019 after the complainant, a minor girl, who was carrying 31 weeks' pregnancy at the relevant time, lodged a case against him. It was the girl's case that the duo were in a love affair and that the appellant had forcible sexual intercourse with her and later on continued with the same on a false promise to marry. She conceived and requested the appellant to perform marriage. He however, rented a house and in the presence of neighbours there, exchanged garlands with her and made her believe that she was his wife. 

However, he then started insisting the complainant to abort the pregnancy, to which she refused and he assaulted her. She then went back to her parents' house and there too, the appellant created scenes and assaulted her twice. It was then that the victim realised that the appellant only made a farce of a marriage and sexually exploited her since now he was neglecting her and even disowning the paternity of the child in her womb.

In her cross-examination before the trial court, the victim categorically admitted to have lodged a complaint with the Child Welfare Committee (CWC) section of the Wardha Police and admitted before it, by referring to her photos with the appellant (garlanding each other) told the officials there, that he was her husband.

Based on this admission, the appellant, argued that it was a consensual sexual act by the victim with her husband.

"In my view, this submission cannot 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," the bench said in the order.

Further, the bench noted that not only the Medical Officer's evidence but also other evidence like her birth certificate, DNA report, corroborated evidence of the victim. 

"On re-appreciation of the evidence, I am satisfied that the Trial Judge has not committed any mistake and his findings on all the counts are supported by the 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," Justice Sanap said while dismissing the appeal. 

Case title: S v. State of Maharashtra (BAIL APPLICATION NO. 1851 OF 2024) 

Citation: 2024 (LiveLaw) Bom 589

Appearance: 

Advocate Parvez Mirza was appointed to appear for the Appellant.

Additional Public Prosecutor Swati Kolhe represented the State.

Advocate Shubhada Phaltankar appeared for the Victim 

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