Non-consensual intercourse with minor wife is rape, says HC

Mumbai: Non-consensual intercourse with a wife who is below 18 years of age constitutes the offence of rape, the Bombay High Court said while upholding the conviction of a man sentenced to 10 years for the crime.

The Nagpur bench of Justice G A Sanap, in an order passed on November 12, dismissed the 24-year-old man’s appeal challenging the 2021 judgment of a sessions court holding him guilty under the provisions of the Protection of Children from Sexual Offences Act and the Indian Penal Code for sexually assaulting his underage wife.

The man, who was sentenced to 10 years in jail by the sessions court, claimed since the victim was his wife, their sexual relationship cannot be termed as rape.

The high court, however, said the defence of consensual sex with the wife cannot be taken when the age of the wife is below 18 years.

“Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The non-consensual intercourse with a wife, who is below 18 years of age, is rape,” the bench held.

The woman, in her complaint lodged in 2019, said she was in a relationship with the man and that, despite her refusal, he raped and impregnated her. The duo then lived together and got married. However, the man insisted on an abortion.

She alleged that the man made a farce of the marriage and repeatedly raped and physically assaulted her.

The court noted that the woman gave birth to a baby boy, and as per the DNA analysis, the accused and her were the biological parents.

The man, in his appeal, claimed innocence and said the complainant was his wife and hence, their physical relation cannot be termed as rape and that it was consensual.

He also claimed that the woman was not a minor at the time of the alleged incident.

The court, however, refused to accept this contention. It noted that as per documentary evidence, the complainant was born in 2002 and was a minor in 2019 when the alleged incident occurred.

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