The Court affirmed the apex court’s decision in Independent Thought vs. Union of India, which read down the marital rape exception for wives who are under 18.
The Nagpur bench of the Bombay High Court recently held that sexual intercourse with a wife below 18 years of age, even if consensual, amounts to rape. Justice GA Sanap made this ruling while upholding the trial court’s decision to sentence the man to 10 years of rigorous imprisonment.
“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 affirmed the Supreme Court’s decision in Independent Thought vs. Union of India and Another, which restricted the marital rape exception under the Indian Penal Code for wives below the age of 18.
This case, originating in 2019, involved a minor girl who had been in a romantic relationship with the accused for three to four years. Over time, she began working in a shop to support her family and later rented a room in Wardha, where the accused frequently visited her.
Although the victim was initially hesitant, the accused pressured her into sexual intercourse and ultimately coerced her into engaging in sexual activity under the pretense of a promise to marry her.
Trusting his promises, the victim entered into the relationship, believing they were in a committed partnership. However, the situation changed when she became pregnant.
The accused then arranged an informal marriage ceremony in a rented room, attended by a few neighbors. The victim later described this event as a sham, lacking legal validity and conducted without any formalities.
Following this fake marriage, the accused continued to manipulate the victim, pressuring her to terminate her pregnancy and denying responsibility for the child, claiming she had conceived with another man.
After months of distress, the victim eventually reported the incident to the police, leading to a case being registered against the accused.
During her cross-examination in the trial court, the victim clearly stated that she had filed a complaint with the Child Welfare Committee (CWC) section of the Wardha Police. She referred to photographs with the accused, where they were shown exchanging garlands, and informed officials that he was her husband.
The defense argued that, based on this admission, the sexual act was consensual since it involved the victim and her husband.
However, the Court dismissed these arguments, affirming that the prosecution had successfully demonstrated that the victim was underage at the time of the alleged offenses.
“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.”
