Arjun Sitaram Gadage vs Ramnath Ashok Shinde And Another
2022 Latest Caselaw 4098 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


       ANTICIPATORY BAIL APPLICATION NO.118 OF 2022
                          WITH
           CRIMINAL APPLICATION NO.970 OF 2022


 Ramnath S/o Ashok Shinde
                                                         ...APPLICANT
        VERSUS

 1) The State of Maharashtra,

 2) X.Y.Z.
                                                         ...RESPONDENTS

                   ...
      Mr.Narayan B. Narwade Advocate for Applicant.
      Mrs.Vaishali Patil-Jadhav, A.P.P. for Respondent No.1 State.
      Mr.Kunal A. Kale Advocate for Respondent No.2.
      Ms.Manjushri V. Narwade Advocate for applicant in Criminal
      Application No.970 of 2022 for assist to APP.
                   ...

                CORAM: SMT. VIBHA KANKANWADI, J.


 DATE OF RESERVING ORDER                    :   15th MARCH 2022

 DATE OF PRONOUNCING ORDER :                    19th APRIL 2022



 ORDER :

1. Criminal Application No.970 of 2022 moved for assist to

APP stands allowed and disposed of.

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2. Applicant is apprehending his arrest in connection with

Crime No.370 of 2021 registered with Sonai Police Station,

Taluka-Newasa, District-Ahmednagar, for the offence punishable

under Sections 3, 4, 5, 6, 9, 10, 11 of the Child Marriage

Restraint Act and under Sections 376(N), 323, 504, 506 of the

Indian Penal Code and under Sections 4, 5 (L), 6, 8 of the

Protection of Children from Sexual Offences Act (for short

"POCSO Act").

3. Heard learned Advocate Mr. N.B. Narwade for the

applicant, learned APP Mrs. Vaishali Patil - Jadhav for the

respondent No.1 - State well assisted by learned Advocate Ms.

Manjushri Narwade for the informant, and learned Advocate Mr.

Kunal Kale for respondent No.2.

4. It has been vehemently submitted on behalf of the

applicant that the perusal of the First Information Report (for

short "FIR") would show that it has been filed due to constrains.

The relationship in between the informant and the present

applicant is that of wife and husband. At the time of marriage,

there was no resistance by the informant nor she says that she

had personally disclosed her age. In fact, what impression was

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given to the applicant by her mother and other relatives was that

she was major. The marriage was performed on 3 rd July 2021.

After few days the applicant - husband and his parents found

certain abnormal activities of the victim - respondent No.2. She

used to talk irrelevantly and used to behave in such a way that

she was not able to understand anything. The applicant had

taken her to hospital on 24 th July 2021, where it was suggested

that she should be admitted. At that time her parents told that

she should be given treatment from the earlier doctor i.e. Doctor

Unde Hospital, Shrirampur. The applicant then came to know

that she was taking treatment from a psychiatrist. Rather the

applicant himself has been cheated by the victim and her

parents. Neither the victim nor her parents had disclosed that

the victim was minor. Even before the Superintendent of Police,

her parents had told that the age of the girl was 18 years. The

applicant is educated person and believed in the statement of

the victim and her parents. Offence under Section 376(n) of the

Indian Penal Code is technically not attracted because applicant

is the husband of the victim. The applicant had issued legal

notice to the victim on 1 st October 2021, giving intimation that

she should meet the Advocate of the applicant so that process of

cancellation of marriage would be started and after receiving

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that notice the FIR has been lodged with the concocted story

that she was minor when the marriage was performed. The

custodial interrogation of the applicant is not required. The

applicant has produced copies of the papers of treatment given

to the victim. Her photographs, alleged to be doing abnormal

activities, and copy of the notice are also placed on record. The

applicant is ready to abide by the terms of the bail.

5. Learned Advocate for the applicant has relied on the

decision in Independent Thought vs. Union of India, AIR

2018 SC (Criminal)) 229, wherein the Hon'ble Supreme Court

held that, the exception 2 to Section 375 of the Indian Penal

Code insofar as it relates to girl child below 18 years is liable to

be struck down and it should be read as follows:-

"Sexual intercourse or sexual acts by man with his own wife, wife not being 18 years, is not rape."

6. Learned counsel for the applicant is relying upon Paragraph

Nos. 29, 30, 31, 46 to 48, 63, 64, 70, 71, 74, 78, 79 and 97 of

the Judgment of the Apex Court Independent Thought vs.

Union of India (supra). He further submits that though this

decision is there, yet when the custodial interrogation of the

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applicant - husband is not required, he be released on

anticipatory bail.

7. Learned APP has submitted that the applicant is not

denying the fact that his wife i.e. victim girl was aged 17 years

when the FIR was given and prior to that , i.e. for about four

months she was married to the applicant. The consent of the

minor is no consent at all and if the loopholes or technical

defences are allowed to be raised, then it would help those

persons who commit the offence and still want the protection of

the law. Learned APP has pointed out that reports are appearing

in the newspapers that in the Covid situation there is increase in

child marriages and in fact it is a social problem and it cannot be

tackled unless there are rigours of law as well as social

awareness. Learned APP is also relying upon the same decision

in Independent Thought vs. Union of India (supra) wherein

it has been held :-

"Sexual intercourse with girl below 18 years of age is rape regardless of whether she is married or not. Exception creates unnecessary and artificial distinction between married girl child and unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. Artificial distinction is arbitrary and discriminatory and is definitely not in best interest of girl child. Artificial distinction is contrary to philosophy and ethos of Article 15(3) of Constitution as well as contrary

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to Article 21 of Constitution and out commitments in international conventions. It is also contrary to philosophy behind some statutes, bodily integrity of girl child and her reproductive choice. What is equally dreadful, artificial distinction turns blind eye to trafficking of girl child and surely each one of us must discourage trafficking which is such horrible social evil. Existence of Article 21 of Constitution gives fundamental right to girl child to live life of dignity. Documentary material placed before Supreme Court clearly suggests that early marriage takes away self esteem and confidence of girl child and subjects her, in sense, to sexual abuse. Under no circumstances can it be said that such girl child lives life of dignity. Right of girl child to maintain her bodily integrity is effectively destroyed by traditional practice sanctified by IPC. Her husband, for purposes of Section 375 of IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such activity would not be rape. Anomalously, although her husband can rape her but he cannot molest her for if he does so he could be punished under provisions of IPC. It appears therefore that different and irrational standards have been laid down for treatment of girl child by her husband and it is necessary to harmonize provisions of various statutes and also harmonize different provisions of IPC interse."

" Exception 2 to Section 375 IPC insofar as it relates to a girl child below 18 years is liable to be struck down on the following grounds:-

(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution of India;

(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii) it is inconsistent with the provisions of POCSO, which must prevail.

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Therefore, Exception 2 to Section 375 IPC is read down as follows:

'Sexual intercourse or sexual acts by man with his own wife, the wife not being 18 years, is not rape'.

It is, however, made clear that this judgment will have prospective effect."

8. The learned APP further submits that in Independent

Thought vs. Union of India (supra) the Hon'ble Supreme

Court has considered all the aspects involved and in order to

bring POCSO Act in consonance with Exception 2 to Section 375

of the Indian Penal Code (for short "IPC"), had taken pragmatic

option available. The impact on the society of the child marriages

was also considered and therefore, in fact the case is against the

interest of the applicant. Rather when offence is clearly made

out, the applicant does not deserve to be released on bail.

9. Learned Advocate appearing for respondent No.2 - victim

girl has strong objection for grant of anticipatory bail to the

applicant. It has been stated that the victim was minor when her

marriage was performed. Even her parents are accused persons

but at present she is residing with them. No advantage can be

given to the applicant on the count that he is the husband of the

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victim. The victim has denied that she behaved abnormally while

cohabiting with the applicant.

10. It is to be noted that in this case the FIR has been lodged

by Ajrun Sitaram Gadge, who is serving as Village Development

Officer. In fact it is the outcome of the inquiry made by Child

Welfare Committee and directions given by the Child Welfare

Committee to lodge the report under the Child Marriage

Restraint Act and therefore, when the FIR was lodged, it was in

respect of offences under sections of Child Marriage Restraint Act

only. However, after the statement of the victim was recorded,

further sections have been added i.e. 376(n), 323, 504, 506 of

the IPC and Sections 4, 5 (L), 6 and 8 of the POCSO Act. The

informant has filed separate application bearing Criminal

Application No.970 of 2022 for assisting the APP and accordingly

by taking objection for grant of anticipatory bail, the learned

Advocate representing informant has assisted the learned APP.

11. At the outset, it can be seen that there is no dispute that

the marriage of the victim was performed with the applicant on

3rd July 2021. So far as the age of the victim is concerned, it is

submitted on behalf of the applicant that it was represented to

the applicant by the relatives of the victim that she was major at

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the time of settlement of marriage. However, it is to be noted

that statement of counsellor of Child Protection Department has

been recorded, who states that on 25th November 2021 two

ladies and one male person came to her and had disclosed their

name as of victim and her parents. The victim gave application

to child-line stating that the parents and the father-in-law,

mother-in-law and other persons had forced her to perform

marriage with the applicant though she was minor. Upon the said

complaint application, it was forwarded to Village Development

Officer, who is also the competent authority under the Child

Marriage Restraint Act, who has lodged the report. In that

application, she has given her age as 17 years 3 months and 27

days. The Department of Women and Child Development gave

further directions that further steps to be taken and therefore,

the matter was referred to Child Welfare Committee and after

inquiry, the Child Welfare Committee considered as to whether

the victim is in need of care and protection and taking into

consideration the age of the child, the Committee had considered

the victim as "child" within the definition of the Juvenile Justice

(Care and Protection of Children) Act. The school leaving

certificate, Adhar Card of the girl was considered. Under such

circumstance, we can say that there is prima facie evidence to

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show that the victim is a "child" within the definition of Child

Marriage Restraint Act as well as the Juvenile Justice (Care and

Protection of Children) Act. No other documentary evidence has

been placed by the applicant to show that because of those

documents he carried the impression that the girl is major. He is

simply saying that since the representation was given to him

that the girl is major he believed the said statement. It is for him

to establish the same through oral evidence. Now, when the

prima facie evidence appears to be showing that the victim was

minor when her marriage was performed with the applicant, then

whether the applicant can seek any kind of exemption on the

count that he is the husband of the victim, is a question.

12. It is to be noted that Exception 2 to Section 375 of the IPC

reads thus:

" Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

13. However, the matter was placed before the Hon'ble Apex

Court in Independent Thought vs. Union of India (supra) for

the interpretation of the said Clause as well as by pointing out

the conflict or incongruity between the provisions of IPC and

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POCSO Act. It was observed that, rape of married girl child

(between 15 to 18 years of age) is not rape under IPC and

therefore not offence in view of Exception 2 to Section 375

thereof, but it is offence of aggravated penetrative sexual assault

under Section 5(n) of POCSO Act and punishable under 6 of that

Act. This conflict or incongruity needs to be resolved in best

interest of girl child and provisions of various complementary

statutes need to be harmonized and read purposively to present

an articulate whole and therefore, taking into consideration the

object with which various Acts were enacted, the report of Law

Commission of India, National Policy and National Plan, the

Protection of Human Rights Act etc. were considered. Section

42-A of the POCSO Act inserted in POCSO Act by amendment

dated 3rd February 2013 was also considered and the further

consideration was for the definitions in Juvenile Justice (Care and

Protection of Children) Act, 2015. The brief summary of the

existing legislations has been considered in Para 52 of the

Judgment, which reads thus:

"52. It is obvious from a brief survey of the various statutes referred to above that a child is a person below 18 years of age who is entitled to the protection of her human rights including the right to live with dignity; if she is unfortunately married while a child, she is protected from domestic violence, both physical and mental, as well as from physical and sexual abuse; if she

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is unfortunately married while a child, her marriage is in violation of the law and therefore an offence and such a marriage is voidable at her instance and the person marrying her is committing a punishable offence; the husband of the girl child would be committing aggravated penetrative sexual assault when he has sexual intercourse with her and is thereby committing a punishable offence under the POCSO Act. The only jarring note in this scheme of the pro-child legislations is to be found in Exception 2 to Section 375 of the IPC which provides that sexual intercourse with a girl child between 15 and 18 years of age is not rape if the sexual intercourse is between the girl child and her husband. Therefore, the question of punishing the husband simply does not arise. A girl child placed in such circumstances is a child in need of care and protection and needs to be cared for, protected and appropriately rehabilitated or restored to society. All these 'child-friendly statutes' are essential for the well-being of the girl child (whether married or not) and are protected by Article 15(3) of the Constitution. These child-friendly statutes also link child marriages and sexual intercourse with a girl child and draw attention to the adverse consequences of both."

. The various pronouncements of the Apex Court were also

considered and then it has been observed:-

" We must not and cannot forget the existence of Article 21 of the Constitution which gives a fundamental right to a girl child to live a life of dignity. The documentary material placed before us clearly suggests that an early marriage takes away the self esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC. Her husband, for the purposes of Section 375 of the IPC, effectively has full control over her body and can subject her to

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sexual intercourse without her consent or without her willingness since such an activity would not be rape. Anomalously, although her husband can rape her but he cannot molest her for if he does so he could be punished under the provisions of the IPC. This was recognized by the LCI in its 172nd report but was not commented upon. It appears therefore that different and irrational standards have been laid down for the treatment of the girl child by her husband and it is necessary to harmonize the provisions of various statutes and also harmonize different provisions of the IPC interse."

14. Thereafter, the Hon'ble Apex Court went on to interpret

how the harmony can be brought into the provisions of the IPC

inter-se and also with the various Statutes. Further, the Hon'ble

Apex Court observed that there were five options before the

Court, which have been enumerated in Para 105 of the

Judgment, which runs thus:-

" (i) To let the incongruity remain as it is - this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC

- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years - this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC - this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes;

(v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive

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and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus."

. By separate Judgment, but concurring, Hon'ble Justice

Deepak Gupta also observed that:

" When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy. As is evident from various reports referred to above, girls who were married before the age of 19 years are likely to suffer medical and psychological problems. A 15 or 16 years old girl, when forcibly subjected to sexual intercourse by her "husband", undergoes a trauma, which her body and mind is not ready to face. The girl child is also twice as more likely to die in child birth than a grown up woman. The least, that one would expect in such a situation, is that the State would not take the defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Articles 14, 15 and 21 of the Constitution. Therefore, this Court is of the view that Exception 2 to Section 375 IPC is arbitrary since it is violative of the principles enshrined in Articles 14, 15 and 21 of the Constitution of India."

15. The major inconsistency between POCSO Act and IPC was

also considered by the Hon'ble Apex Court and therefore, the

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said Exception to Section 375 of the IPC was rather modified and

instead of age 15 it was replaced by the word "18". It will have

to be said that since the law has been laid down by the Hon'ble

Apex Court under Article 32 of the Constitution of India, it is the

law and it will have to be interpreted in the same way which has

been put in Independent Thought vs. Union of India (supra).

16. The present applicant, therefore, cannot take up such

defence that since he was married to the informant and she had

not resisted or whatever sexual intercourse between them was

with consent or voluntary. Child marriages are hazardous to the

social fabric of this Country. Child marriages will have to be

stopped and no person can be allowed to take advantage of any

such situation. At the time of settlement of marriage, definitely,

certain inquiries are required to be made and it is not restricted

to the behaviour of the girl or the financial condition of her

parents but also other things are also required to be considered,

especially, the age. The applicant is harping upon the point of his

notice dated 1st October 2021 and also the treatment papers. All

those defences are required to be proved by him at the time of

trial. He cannot be allowed to say that because of the said

abnormal behavior he will not get rid off the relationship.

Ultimately, the competent Court, if the applicant approaches, will

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have to decide that point. The fact, however, remains that the

victim was minor when the marriage took place. Whether only to

believe the representations made regarding the age, is a point to

be decided and when there was scope for making inquiry, going

through the documents before settlement of marriage, yet to

believe in the representations only, are all the points of defences

which cannot be considered at this stage. We are required to

consider the prima facie facts. The persons cannot be allowed to

go away by putting a defence that they had taken the precaution

and in fact what was represented, was different at the time of

settlement of marriage. Those efforts or the inquiry that was

made, should be visible and bona fide. When the offence alleged

against the applicant also involves the social problem, this Court

is not inclined to use the extraordinary discretionary relief under

Section 438 of the Code of Criminal Procedure in favour of the

applicant.

17. Accordingly, the Application stands rejected.

[ SMT. VIBHA KANKANWADI , J. ]

asb/APR22