Physical Relationship With Minor Wife Comes Within Category Of Rape: Madhya Pradesh High Court Denies Bail To Husband

The Madhya Pradesh High Court (Gwalior Bench) recently denied bail to a man who has been accused of establishing a physical relationship with his 'wife' who was below the age of 18 at the time of the commission of the alleged offence and thereby booked for committing rape.

The Bench of Justice G. S. Ahluwalia noted that in the case of Independent Thought Vs. Union of India and another reported in (2017) 10 SCC 800, the Supreme Court had read down the provision of exception 2 to Section 375 of IPC and had held that physical relationship with a minor wife, i.e., below the age of 18 years would also come within the category of rape.

In Independent Though (Supra), the Supreme Court had read down exception 2 to Section 375 (which defines rape) of the IPC [as amended by the Criminal Law (Amendment) Act, 2013] which allowed such a sexual act. The age of consent had been made 18 from 15 in these cases.

Essentially, the Court was dealing with the fifth bail plea of one Ajay Jatav, who was arrested on January 31, 2021, in connection a registered against him for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

It was submitted by his that although the Court while deciding the fourth bail application, had considered the evidence of the prosecutrix, thereafter, her father had also been examined and in his evidence, wherein he had stated that the prosecutrix was aged about 17 years and 6 months at the time of the alleged offence.

It was further submitted that the applicant has married the prosecutrix and thus, it was prayed that he be granted bail, however, the examination of his father wasn't considered as a changed circumstance by the Court that would allow his release on bail.

Importantly, during the course of hearing of his fourth bail plea, it was submitted by his counsel that the prosecutrix had been examined and she had stated that physical relationship had developed only after she attained majority and got married to the applicant.

However, that plea was opposed by the counsel for the State as well as counsel for the complainant,

It was submitted that as per the report of the hospital, the prosecutrix gave birth to a child on September 16, 2020, and thus, it was clear that she became pregnant in the month of December 2019 itself and date of birth of the prosecutrix is February 01, 2002, and, therefore, it was clear that on the date of becoming pregnant, the prosecutrix was minor.

In these circumstances, the Court had dismissed his bail plea on 31st July 2201, thereafter he moved his fifth bail plea, i.e., the instant bail plea. 

On October 21, hearing his fifth bail, the Bench of GS Ahluwalia noted that in the absence of any change in circumstance, no case was made out for grant of bail and therefore, his bail was dismissed for the fifth time.

Case Title - Ajay Jatav Vs. State of MP and anr.

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