The Delhi High Court recently acquitted a Muslim man who had been convicted in 2008 of kidnapping and raping his minor Hindu girlfriend.
Justice Vimal Kumar Yadav found that the alleged victim was an adult and had willingly married the man. The Court added that she later blamed him because of pressure from her family.
"What emerges on record is that the prosecutrix had herself, of her own volition not only accompanied the Appellant but, got married under Special Marriage Act. The marriage certificate is part of record. So far as, the age of the prosecutrix is concerned, with the margin of error it can be taken as 18 years i.e. the age when a female can marry and can also have consensual relationship with anyone of her choice," the Court said, while acquitting the man.
In the judgment delivered on May 11, the Court lamented the deep-rooted differences in Indian society that stand in the way of interfaith relationships.
“Fragmented, stratified and deeply divided Indian society across all the classes left no room practically for the young lovers to choose their partners. If the prescribed barriers are to be breach then, the consequences have been so severe that they have had to pay with their lives at times," the Court said.
"In such a deeply divided society, which has not only divided the lives, religion, caste, region or language but even inter-se divisions have been found within a particular social group. In such circumstances, an inter-religious alliance was no less than a sin against such a scenario," it added.
Against this backdrop, the Court observed that there was so much resistance to the inter-faith relationship of the couple that the woman, who had voluntarily married the man and lived with him for about two months, "turned tables and shifted the entire blame" on him during the trial.
The case dates back to 2004, when the young couple ran away to the man’s hometown in West Bengal and got married under the Special Marriage Act, 1954.
However, the woman’s father later lodged a police complaint, accusing the man of kidnapping his allegedly minor daughter. They were brought back to Delhi.
In 2008, a trial court convicted the man of rape and kidnapping. He then moved the High Court in 2009 seeking to have his conviction set aside.
Considering the evidence on record, the High Court observed that the woman had ample opportunity to raise an alarm during the period in which she was allegedly kidnapped.
"Her silence in such circumstances only indicates that she was an ally of the Appellant and accompanied him by her own choice, will and desire," the Bench said.
Regarding the woman’s age, the Court rejected the contention that she was a minor.
"The result of the ossification test Ex. PW-11/A clearly reflects that the age of the prosecutrix was between 14 to 16 years old at the relevant time and given the concept of margin of error which provides that it could be plus(+) minus(-) 02 years as such, the age of the prosecutrix could be in the range of 12 to 18," the Bench said.
The Court observed that, even if she were below 18 years of age, she could not claim rape under Section 375 of the Criminal Procedure Code (CrPC) as it stood in 2004.
At the time, sexual intercourse by a man with his own wife, provided she was not below 15 years of age, did not constitute the offence of rape under the marital rape exception.
"She has herself given her age as 18 years in the statement recorded under Section 164 Cr.P.C. she has also stated the same age in the MLC Ex. PW-7/B too," the Bench added.
The Court also said her conduct suggested that her testimony before the trial court "was under some sort of social or parental pressure and certain aspects are there which could not be explained by her during cross-examination."
Advocates Samar Singh Kachwaha, Arsh Ranpal, Kavita Vinayak and Yash Dadriwal appeared for the accused husband.
Additional Public Prosecutor Nawal Kishore Jha appeared for the State.
Advocate Astha appeared for Delhi High Court Legal Services Committee.
[Read Judgment]