Physical relationship with minor wife is rape: Madhya Pradesh High Court

Physical relationship with a minor wife (i.e. below the age of 18 years) will amount to rape, the Madhya Pradesh High Court observed while denying bail to a man accused of rape and offences under the Protection of Children from Sexual Offences Act (POCSO Act) [Ajay Jatav v. State of Madhya Pradesh and Another]..Justice GS Ahluwalia, of the High Court's Gwalior Bench, was hearing the bail application of one Ajay Jatav, who had been booked for offences under Section 363 (punishment for kidnapping), Section 366 (kidnapping, abducting or inducing women to compel her marriage) Section 376 (punishment for rape) of the Indian Penal Code (IPC), and Sections 5 and 6 of the POCSO Act.This was, in fact, the fifth bail application filed by the accused.Advocate Awdhesh Sharma, appearing for the accused-applicant, submitted that although in fourth bail application the Court considered the evidence of the prosecutrix, but subsequently her father had also been examined in the matter and had stated that the prosecutrix at the time of commission of the offence was aged about 17 years and 6 months.During the hearing of the fourth bail application, the applicant had submitted that the prosecutrix was examined and had stated that physical relationship had developed only after she became an adult and was married to the applicant.Opposing the same, the State submitted that as per the report of a hospital, the prosecutrix gave birth to a child on September 16, 2020 and thus, it was clear that she became pregnant in the month of December 2019 itself. Given that the date of birth of the prosecutrix was February 1, 2002, it was clear that she had become pregnant when she was a minor, the State submitted.The Court, relying on the Supreme Court decision in Independent Thought vs. Union of India and Another (2017) 10 SCC 800 refused to grant bail to the applicant. It observed that in that judgment, the apex court had "read down the provision of exception 2 to Section 375 of IPC and has held that physical relationship with a minor wife, i.e., below the age of 18 years would also come within the category of rape."Considering these circumstances, the Court had on July 31, 2021, denied bail to the applicant. [Read Order]