In a significant ruling on November 12, the Bombay High Court affirmed that a man engaging in sexual intercourse with his wife under the age of 18 constitutes rape, irrespective of her consent. The court reiterated that the age of consent in India is 18, and any sexual act with a girl below this age, married or not, is a criminal offence.
A single-judge bench, led by Justice Govind Sanap, was hearing a criminal appeal filed by a man challenging a September 9, 2021 trial court verdict in Wardha district. The trial court had convicted him under charges of rape and provisions of the Protection of Children from Sexual Offences (POCSO) Act.
Court’s position on consent and marriage
Rejecting the man’s argument that the sexual intercourse was consensual due to their marital status, Justice Sanap stated:
“Sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not.”
The judge further clarified that the defence of consensual sex is not available when the wife or alleged wife is below 18 years. In this case, the victim’s age nullifies any claim of consent or marital immunity from prosecution.
Details of the case
The appellant was arrested on May 25, 2019, after the complainant, a minor girl who was 31 weeks pregnant at the time, lodged a case against him. The girl alleged that the man, with whom she was in a relationship, had forcibly engaged in sexual intercourse with her on the false promise of marriage.
According to reports, the man rented a house and staged a fraudulent marriage ceremony, exchanging garlands in the presence of neighbors to convince the girl she was his wife. After the girl became pregnant, the man insisted on terminating the pregnancy, and when she refused, he assaulted her multiple times.
The victim eventually realized the marriage was a sham and that she had been sexually exploited.
Judicial observations
Justice Sanap emphasized that even if a marriage had occurred, the allegations of sexual intercourse without the girl’s consent would constitute rape under the law. He highlighted that the Supreme Court has unequivocally ruled that marital status cannot exempt a man from prosecution for rape if the wife is underage.
The judgement reinforces the legal principle that safeguarding minors from exploitation and abuse takes precedence over marital or consensual claims, setting a strong precedent for similar cases.
