Delhi High Court upholds acquittal of Muslim man accused of raping his 15-year-old wife

The Delhi High Court recently upheld the acquittal of a Muslim man accused of raping a 15-year-old girl after noting that the girl, also a Muslim, was his wife and he had sexual intercourse with her only after they got married to each other. .A division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna said that the relationship of the accused with the victim cannot be termed as rape.As per Muslim personal law, a Muslim girl over the age of 15 years is competent to enter into a contract of marriage with the person of her choice and sex with such a girl is not considered an offence. “We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent [accused man] with the victim, cannot be termed as rape. The respondent has been rightly acquitted,” the High Court observed.It also agreed with the conclusion of the Additional Sessions Judge (ASJ) 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 Protection of Children from Sexual Offences Act (POCSO Act) was made out..The Court was dealing with an appeal filed by the State against a judgment of acquittal dated November 15, 2016 through which the accused man was acquitted of the offence punishable under Section 376 of the Indian Penal Code (IPC).A first information report (FIR) was registered by the Delhi Police on the complaint of the mother of the child stating that in the month of October and November 2014 while the child was alone, the respondent (who was victim's sister's husband) came to her house four to five times and committed rape upon her.The medical examination revealed that the girl was pregnant.As the matter came before the trial court, the victim stated that the accused was the husband of her elder sister and that in the month of December, 2014 she along with her mother, the accused and his wife had gone to native place in Bihar to attend the marriage of their cousin sister. After attending the marriage ceremony, she got married to the accused. Her parents were, however, not aware about her marriage to the accused.Thereafter, she along with her mother and respondent-husband and sister returned to Delhi. She further revealed that the respondent thereafter had physical relations with her on various occasions..After considering the facts of the case, the Court concluded that there was no ground to grant leave to appeal. The application was, therefore, dismissed.. Additional Public Prosecutor Manjeet Arya appeared for State.The legal issue of allowing Muslim girls below 18 to enter into a valid marriage is pending before the Supreme Court.The Punjab and Haryana High Court order had on June 13, 2022 ruled that as per Muslim personal law, a Muslim girl over the age of 15 years is competent to enter into a contract of marriage with the person of her choice.The Delhi High Court had also held that according to Muslim law, a minor girl who has attained puberty can marry without the consent of her parents and has the right to reside with her husband.In such cases, when physical intercourse happens only after the wedlock, offences under the POCSO Act will not be attracted.The National Commission for Protection of Child Rights (NCPCR) then filed an appeal against the Punjab and Haryana High Court decision saying that permitting such marriages would be against the POCSO Act as well as the Indian Penal Code (IPC) as per which age of consent for sex is 18. The issue is currently pending before the top court..[Read Judgment]