“Sexual Intercourse with minor wife is rape: Bombay High Court.”
November 12, 2024 2025-03-02 0:32“Sexual Intercourse with minor wife is rape: Bombay High Court.”
“Sexual Intercourse with minor wife is rape: Bombay High Court.”
By: Himabindu Lingala
The applicant filed an appeal before the Bombay High Court challenging the judgement and order dated 09.09.2021, passed by the Special Judge and Extra Joint Additional Sessions Judge, wherein the appellant was held guilty for offences punishable under Section 6 (Punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act (POCSO), 2012 and under Section 417 (Punishment for cheating), Section 504 and Section 506 (. Punishment for criminal intimidation) of the Indian Penal Code (IPC).
The victim, below the age of 18, lodged a report against the appellant on 25.05.2019, alleging him of committing forcible penetrative sexual assault against her under the false promise of marriage. The minor victim became pregnant. At the date of lodging the report the victim was 31 weeks pregnant and the DNA evidence proved that the child’s paternity matched the appellants’.
Advocate on behalf of the Appellant argued that since the victim admitted that she was married to the appellant in her initial submission, the sexual intercourse would not constitute rape and offence of penetrative sexual assault as defined under Section 3 of the POCSO Act, 2012.
The Public Prosecutor submitted that the prosecution effectively proved that the appellant created a pretence of marriage to save himself from the persecution of the law and society. Exception 2 to Section 375 of the IPC would not apply to the appellant and would not save the appellant from the offence defined under Section 3 of the POCSO Act.
The Bombay High Court relied on legal position asserted by the apex court in the case of Independent Thought v. Union of India, (2017) 10 SCC 800, wherein, the apex court held that “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.” The Apex Court enunciated that Exception 2 to Section 375 of the IPC must be interpreted to align with POCSO Act, and other child protection laws. Therefore, Exception 2 should be understood to mean: ‘Sexual intercourse or acts by a man with his wife, if she under the age of 18, is rape.’
After reconsidering all the evidence, the High Court upheld the judgement of the Special Court and reiterated that the exception of marital rape does not apply if the wife is a minor. The appeal was dismissed.
Case name: Vaibhav v. State of Maharashtra through Police Station Officer
Citation: 2024 SCC OnLine Bom 3557
