Physical Relationship With Wife Aged About 15 Years Can’t Be Termed As Rape: Delhi High Court Upholds Muslim Man’s Acquittal

The Delhi High Court has upheld the acquittal of a Muslim man in a rape case observing that his physical relationship with the child victim aged about 15 years, who was also his wife, cannot be termed as rape.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna upheld the trial court order which observed that no offence under Section 6 read with Section 5(1) of POCSO Act was made out against the man in view of the testimony of the child victim that she got married to him in December, 2014, and only thereafter did they have a physical relationship.

“We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent with the victim, cannot be termed as rape. The respondent has been rightly acquitted,” the court said.

The bench dismissed an application moved by the prosecution seeking leave to appeal against the judgment passed by the trial court on November 15, 2016, acquitting Mohd K (name withheld) for the offence of rape punishable under Section 376 of Indian Penal Code.

The FIR alleged that during October and November, 2014, the man, who was the victim’s real brother-in-law, committed rape upon her.

Before the trial court, the victim deposed that in December, 2014, she along with her mother, sister and the accused had gone to native place in Bihar to attend the marriage of their cousin sister. She stated that after attending the marriage, she got married to the accused. According to the victim, her parents were not aware about her marriage with the accused.

After coming to know about the pregnancy, the victim’s mother went to the police station along with the minor and made a complaint.

In her statement recorded before the Magistrate under Section 164 of Cr.P.C, the victim deposed that the accused had never committed any wrong with her before their marriage.

The minor’s mother deposed before the trial court that the victim had revealed that she had got married to the accused without her consent. She also deposed that she did not rely on the version of her minor daughter and took her to the Police Station where she made a complaint and got the FIR registered.

The bench dismissed the application observing that it found no ground for grant of Leave to Appeal against the trial court’s order acquitting the man.

“The learned ASJ had rightly observed that in view of the testimony of the child that she got married to the respondent in the month of December, 2014 and only thereafter did they have physical relationship, no offence under Section 6 read with Section 5(1) of POCSO Act was made out and the respondent was rightly acquitted,” the bench said.

Case Title: STATE GOVT OF NCT OF DELHI v. MOHD K.

Citation: 2023 LiveLaw (Del) 722