Merely Because Sexual Abuse Results In Tying Of Knot Between Victim & Accused Or Birth Of Child Does Not Mitigate Act Of Rape: Delhi High Court

The Delhi High Court has observed that merely because an act of sexual abuse results in tying of knot between the victim and the accused or in birth of a child, it does not mitigate the act of rape. It added that the consent of a minor is immaterial and inconsequential in law.

Justice Anoop Kumar Mendiratta also added that the act of claiming consent of the minor by accused, after luring such minor and entering into physical relationship, cannot be treated in a routine manner for the reason that rape is not only a crime against the victim but against the entire society which leaves little option for minor child "but to toe the line of the accused."

The Court made the observations while denying bail to a man accused in an FIR registered under sec. 363, 366 and 376 of I.P.C. and sec. 4 and 6 of POCSO Act.

The FIR was lodged by mother of the victim, wherein she alleged that some unknown person had kidnapped her daughter aged about 15 years. The victim was reportedly missing since July 2019. Finally, on the basis of mobile technical surveillance and CDR location, the minor victim was recovered on October 5, 2021 along with her 8 month old female child from the house of petitioner.

It was thus the case of prosecution that the victim was persuaded and kidnapped by petitioner, aged about 27 years, when she was waiting for her friend who used to reside on rent, where the petitioner worked as its caretaker. It was alleged that the Petitioner further lured the victim and allegedly married her in a temple.

On the other hand, the counsel appearing for the petitioner submitted that he was in custody since October 6, 2021 and that the relation between the parties was voluntary.

It was urged that the age of the victim was not verified in accordance with law and the she was suffering on account of incarceration of the petitioner.

"In view of settled position of law, sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor. It may also be noticed that a girl child faces several adverse challenges if she is married below 18 years of age," the Court said.

It added "Clause six of Section 375 makes it clear that if the woman is under the age of 18 years then sexual intercourse with her, with or without consent is "rape". Even a sexual intercourse with wife under 18 years of age regardless of her willingness or consent is rape as held in Independent Thought v. Union of India, (2017) 10 SCC 800 giving a meaningful reading to Exception 2 to Section 375."

The Bench also observed that sexual exploitation and sexual abuse of children are heinous crimes which need to be effectively addressed.

"Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law," it said.

The Court thus concluded that sexual exploitation by the petitioner in fell within aggravated penetrated assault as defined in sec. 5 of POCSO Act even if it is claimed that the act was consensual.

"Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record. It is imperative to keep in perspective that the statutes concerning the rights of children are special laws and must prevail and take precedents for ensuring the benefit of children," the Court said.

The Court also said that since the victim was minor at the time of occurrence, even the claim that sexual intercourse was with her consent, is immaterial as the circumstances clearly pointed out that she was enticed and lured with an intention to have the intercourse.

"Even the minor girl‟s infatuation with the alleged kidnapper cannot be permitted as a valid defence as it would amount to undermining the essence of legislative intent under Section 361 of IPC," the Court said.

The petition was accordingly dismissed.

Case Title: JAGBIR v. STATE (N.C.T. OF DELHI)

Citation: 2022 LiveLaw (Del) 697

Click Here To Read Order