A man’s consensual sexual intercourse with his wife, if she is below the age of 18 years, can get him booked for the offence of rape, irrespective of the wife’s consent, the Bombay High Court said in a major ruling on November 12.
Single-judge bench of Justice Govind Sanap was hearing a criminal appeal filed by a man challenging a September 9, 2021 verdict of a trial court in Wardha district, which convicted him under charges of rape and provisions of the Protection Of Children from Sexual Offences (POCSO) Act.
Upholding the conviction, Justice Sanap rejected the man’s argument that the sexual intercourse with the victim was consensual and cannot amount to rape since she was his wife at the relevant time.
Stating that the age of consent is above 18, justice Sanap said, “It needs to be stated that sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not”.
“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,” LiveLaw quoted the judge as saying in the order.
What Bombay HC said
Justice Sanap said 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. Non-consensual intercourse with a wife, who is below 18 years of age, is a rape, the judge added.
In view of the Supreme Court ruling, the judge said that in this 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 was quoted as saying.
The man whose criminal appeal was being heard by the Bombay High Court was arrested on May 25, 2019 after the complainant, a minor girl, who was 31 weeks pregnant back then, lodged a case against him. The girl alleging that they were in a love affair and that man had forcible sexual intercourse with her, adding that he later on continued with the same on a false promise of marriage.
The girl then conceived and asked the man get married to her, however, he performed something that was more of a fraud. The man rented a house and, in the presence of neighbours there, exchanged garlands with the girl, making her believe that she was his wife, as per the LiveLaw report.
However, the man then started insisting the girl to terminate the pregnancy. The man assaulted her after she refused abortion. She then went to her parents’ house and man assaulted her twice there as well.
The girl then realised that the man performed a fraudulent marriage and sexually exploited her.