The Bombay High Court recently comprising of a single Judge bench of Justice Vibha Kankanwadi while rejecting a pre-arrest bail plea of a man booked for the offence of rape under Section 375 IPC, where the girl was a minor noted that the accused could not take up the defence that since he was married to the informant and she had not resisted sexual intercourse between them and the same was with consent. (Trimbak Arun Borude vs The State of Maharashtra & Ors)
The bench remarked, "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."
Facts of the case
The case was lodged for the offence punishable under Sections 376 of the Penal Code, 1860 read with Sections 9, 10, 11 of Prohibition of Child Marriage Act and Sections 3 and 4 of the Protection of Children from the Sexual Offences Act (POCSO) after the minor girl gave birth to a child and hospital authorities found that she was 17 years of age. It was stated that though the mother, paternal uncle and father of the informant had knowledge that she is a minor, her marriage was performed with the applicant.
The applicant submitted that the minor girl, along with her relatives had given the impression to the applicant and his family that she was in fact a major. He also mentioned that during the time of the marriage, there was no resistance on the part of the minor girl.
Contention of the Parties
It was 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.
Learned Advocate for the applicant submitted that even in her FIR she has not stated that she has any complaint to make against the husband. It cannot be said that sexual intercourse between them was against the wish of the girl. In fact there are good relations between them and being wife she had extended no objection for grant of anticipatory bail when the matter was before the learned Special Judge, Shrigonda. The custodial interrogation of the applicant is absolutely not necessary. Applicant is ready to abide by the terms of the bail.
Learned Advocate for the applicant 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.”
Learned APP has submitted that the applicant is not denying the fact that his wife i.e. informant is aged 17 years when the FIR was given and prior to that , i.e. for about 1 and ½ year 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.
Courts Observation and Judgement
The High Court at the very outset taking note of the facts of the case observed that the informant was 17 years old at the time of lodging the FIR.
Moreover, according to the informant, at the time of settlement of marriage, her paternal uncle, mother-in-law, father-in-law and brother-in-law were present. Except for brother-in-law, all the persons referred to above are accused persons in this case.
The bench noted that the applicant appeared to be aged 27 years at that time whereas the informant would be aged around 16 years at the time of marriage. Though the applicant stated that at the time of the marriage, it was posed to him that the informant was 18 years of age.
Thereafter, stating that the modification to the exception to section 375 of the IPC has been laid down by the Supreme Court under Article 32 of the Indian Constitution, the Court accepted it as the law and hence interpreted it in the same way which has been put in Independent Thought vs. Union of India(Supra).
Therefore, the Court stated, the applicant could not take up the defence that since he was married to the informant and she had not resisted, sexual intercourse between them was with consent.
The bench rejecting the application remarked, "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 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."
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