"Child marriages have to be stopped:" Bombay High Court refuses anticipatory bail to man charged with rape of minor wife

The Bombay High Court on Tuesday refused to grant anticipatory bail to a man charged for offence of rape under Section 376 of the Indian Penal Code (IPC) for sexual intercourse with his wife who is a minor [Trimbak Arun Borude vs The State of Maharashtra & Ors.].

Justice Vibha Kankanwadi of the Aurangabad Bench held that the accused could not take up the defence that since he was married to the informant and she had not resisted sexual intercourse between them and the same was with consent.

In this regard, the Court placed reliance on the 2017 judgment of the Supreme Court in Independent Thought v. Union of India wherein the top court had read down Exception 2 to Section 375 of the Indian Penal Code to hold that sexual intercourse between a man and his wife will be exempted from the purview of rape, only if the wife is not under 18 years of age.

"The major inconsistency between POCSO Act and IPC was also considered by the apex court and therefore, the said Exception to Section 375 of the IPC was rather modified and instead of age 15 it was replaced by the word “18”. It will have to be said that since the law has been laid down by the Apex Court under Article 32 of the Constitution of India, it is the law and it will have to be interpreted in the same way which has been put in Independent Thought vs. Union of India. The present applicant, therefore, cannot take up such defence that since he was married to the informant and she had not resisted or whatever sexual intercourse between them was with consent or voluntary," the Court held.

The Court was also informed by the applicant that he had no knowledge of the age of his wife and was given the impression that she was a major.

But the single-judge down the the same

"Child marriages are hazardous to the fabric of this Country. Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation. At the time of settlement of marriage, definitely, certain inquiries are required to be made and it is not restricted to the behaviour of the girl or the financial condition of her parents but also other things are required to be considered, especially, the age," the Court said.

The case was lodged after the minor girl gave birth to a child and hospital authorities found that she was 17 years of age. It was stated that though the mother, paternal uncle and father of the informant had knowledge that she is a minor, her marriage was performed with the applicant.

The applicant, through advocate Rahul R Karpe, submitted that the minor girl, along with her relatives had given the impression to the applicant and his family that she was in fact a major. He also mentioned that during the time of the marriage, there was no resistance on the part of the minor girl.

He further submitted that she was well taken care of and was not mistreated in any manner whatsoever by the applicant or his family. He highlighted that even in the First Information Report (FIR), she had not complained against the conduct of the applicant.

He also brought to the court's attention that the minor had no objection towards the applicant being granted anticipatory bail. He, therefore, argued that sexual intercourse between the two could not have been without consent.

He relied on the Supreme Court's decision in Independent Thought vs. Union of India wherein the apex court had held that, the exception 2 to Section 375 of the Indian Penal Code insofar as it relates to girl child below 18 years is liable to be struck down and it should be read as follows-

“Sexual intercourse or sexual acts by man with his own wife, wife not being 18 years, is not rape.”

Assistant Public Prosecutor AM Phule pointed out that the applicant had not denied the fact that the girl was a minor at the time she delivered a child or the fact that they were married for 1.5 years prior to the delivery.

He mentioned that consent of a minor is no consent at all and asserted that if loopholes or technical defence are allowed to be raised, it would help those persons who commit the offence and still want the protection of the law.

He relied on the same decision of the Supreme Court wherein it was observed as follows:

"Sexual intercourse with girl below 18 years of age is rape regardless of whether she is married or not. Exception creates unnecessary and artificial distinction between married girl child and unmarried girl child and has no rational nexus with any unclear objective sought to be achieved."

He submitted that the top court had considered all the aspects involved and in order to bring POCSO Act in consonance with Exception 2 to Section 375 of the IPC, had taken the most pragmatic option available. The impact on the society of the child marriages, he stated, was also considered.

He, therefore, argued that the case was against the interest of the applicant and he did not deserve to be released on bail.

Advocate SS Gangakhedkar for the informant i.e. the minor girl, appeared to be in a dilemma with regard to the stand to be taken.

"We can understand that the informant – respondent No.2 has given birth to a child and now her relations with the applicant are jeopardized because of the filing of the FIR," said the court.

At the end, Gangakhedkar submitted that the informant had no objection if the applicant is released on anticipatory bail.

Regarding the applicant's submission that at the time of marriage, it was posed to him that the minor girl was 18 years of age, the Court noted that there was no reason for her to now disclose that she was of 17 years of age.

"...the applicant is saying that his relations with the informant are good and he is still considering her as his wife. The question would be then, what prompted the informant to lodge the report," the Court observed.

Thereafter, stating that the modification to the exception to section 375 of the IPC has been laid down by the Supreme Court under Article 32 of the Indian Constitution, the Court accepted it as the law and hence interpreted it in the same way which has been put in Independent Thought vs. Union of India.

Therefore, the Court stated, the applicant could not take up the defence that since he was married to the informant and she had not resisted, sexual intercourse between them was with consent.

"When the offence alleged against the applicant also involves the social problem, this Court is not inclined to use the extraordinary discretionary relief under Section 438 of the Code of Criminal Procedure in favour of the applicant," the Court explained rejecting the anticipatory bail application.

[Read Order]