Sexual intercourse with wife aged about 15 years cannot be termed rape: Delhi HC upholds Muslim man’s acquittal

The Delhi High Court has upheld the trial court’s decision to acquit a Muslim man in a rape case noting that the accused established physical relations with the minor victim after their marriage and when the victim was about the age of 15, thus, it cannot be termed rape.

The court’s Division Bench, comprising Justices Suresh Kumar Kait and Neena Bansal Krishna, relied upon the minor victim’s statement that the accused established a physical relationship after marriage and thus observed that no offence was made out u/s 6 r/w 5(1) of the Protection of Children from Sexual Offences (POCSO) Act. The victim had testified that she married the accused, who is also the victim’s real brother-in-law, in December 2014.

“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 court was hearing the prosecution’s plea challenging the trial court’s verdict dated November 15, 2016, acquitting Mohd K for the offence of rape as punishable under the Indian Penal Code (IPC). The victim had deposed before the trial court that she along with her mother, her sister and the accused brother-in-law went to attend a cousin sister’s wedding in Bihar. The victim informed the trial court that she got married to the accused after the wedding and the minor victim’s parents were not aware of her marriage with the accused.

The minor victim’s mother went to the police station along with the victim to file a complaint against the accused after she learned about the victim’s pregnancy. The minor victim’s mother submitted before the trial court that the minor victim married the accused without her consent and that she did not rely on the version of the minor victim, thus taking her to the police station where she made the complaint and got the FIR registered.

However, the court disposed of the case observing that no ground was found for leave for appeal against the trial court’s order.

“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.

Bharatiya Nyaya Sanhita Amends Marital Rape Exception
On August 11, the Government of India introduced three Bills in the Lok Sabha to repeal and replace three colonial-era legislations – the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. The Union Home Minister Amit Shah introduced the three Bills – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Bill.

“The focus of the existing laws was to protect and strengthen the British administration, the idea was to punish and not to give justice. By replacing them, the three new laws will bring the spirit to protect the rights of the Indian citizen,” the Union Home Minister said.

The government amended the definition of ‘Rape’ in Clause 63 of the proposed code. In the new definition, the provision contains an Explanation that criminalises marital rape of a woman under the age of 18, which was earlier 15 under Section 375 of the Indian Penal Code. The amendment brings the age on par with the age of consent.