Sex with minor wife is rape; marital rape exception doesn't apply: Bombay High Court

The Bombay High Court's Nagpur bench recently held that sexual intercourse between a man and his wife who is below the age of 18 would constitute rape even it it is consensual.

Justice GA Sanap observed while upholding the 10-year rigorous imprisonment sentence handed to a man by a trial court,

"In view of the law laid down by the Apex Court, intercourse by the appellant with the victim being his wife would not constitute rape or penetrative sexual assault, cannot be accepted. It needs to be stated that the sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not...The defence of consensual sex with the wife is not available when the age of the wife or the girl, who is alleged to be the wife, is below 18 years of age."

The Court thus affirmed the apex court's decision in Independent Thought vs. Union of India and another, which read down the marital rape exception under the Indian Penal Code for wives who are under 18.

The present case dates back to 2019. The minor girl had been in a romantic relationship with the accused for approximately three to four years. As their relationship progressed, the victim began working in a shop to support her family, and later rented a room in Wardha, where the man frequently visited her.

Despite the victim's initial reluctance, he pressured her for sexual intercourse, and eventually coerced her into engaging in sexual activity on the promise of marrying her.

The victim, believing his assurances, consented to the relationship under the impression that they were in a committed partnership. However, the situation escalated when the victim became pregnant.

The accused then arranged a makeshift marriage ceremony in a rented room, attended by a few neighbours. The victim later described this event as a farce, lacking any legal validity and conducted without the necessary formalities.

Following this sham marriage, the accused continued to manipulate the victim, insisting that she have an abortion and denying responsibility for the child, claiming that she had conceived with another man.

After months of distress, the victim ultimately reported the matter to the police, leading to the registration of a case against the accused.

During her cross-examination in the trial court, the victim explicitly acknowledged that she had filed a complaint with the Child Welfare Committee (CWC) section of the Wardha Police. She referred to her photographs with the accused, in which they were seen garlanding each other, and informed the officials that he was her husband.

Based on this admission, the defence argued that the sexual act was consensual, as it involved the victim and her husband.

However, the Court dismissed these arguments, firmly stating that the prosecution had convincingly established that the victim was underage at the time of the alleged offences.

"In my view, this submission cannot be accepted for more than one reason. In this case, the prosecution has proved that the victim on the date of commission of the crime was below 18 years of age...Even if it is assumed for the sake of argument that there was so-called marriage between them, in view of the allegations made by the victim that it was sexual intercourse against her consent, it would constitute rape."

Advocate Parvez W Mirza appeared for the appellant.

Additional Public Prosecutor Swati V Kolhe appeared for the State.

Advocate Shubhada Phaltankar appeared for the victim.