Bombay High Court Ruling on Sex with Minor Wife

20-11-2024

In November 2024, The Bombay High Court made an important decision, stating that having sex with a wife who is under 18 years old, even if she agrees, is considered rape.
This decision helps to protect young people under the law and sets an important example for similar cases.

Key Points of the Ruling:

Confirmation of Rape Charges:

Judgment: A judge in Nagpur, Govind A. Sanap, agreed with the 10-year prison sentence given to a 24-year-old man. The man was arrested in 2019 after his wife filed a rape complaint against him.
Legal Basis: The court followed the rules set by the Supreme Court, which say that having sex with a girl under 18 is rape, whether she is married or not.

Rejection of Defense:

Defense Argument: The man's lawyers said the sex was agreed upon because they were married.
Court's Observation: Justice Sanap did not accept this argument. He said that the defense of 'agreed sex with wife' does not apply if the wife is under 18. Having sex with a wife under 18 without her agreement is rape.

Case Details:

The man and the girl were in a relationship for 4 years and were neighbors.
When the girl got a job in a nearby town, the man followed her and forced her to have sex, which led to her getting pregnant. He arranged a fake marriage and later tried to make her have an abortion, which she refused. He then started to hit and abuse her.
The girl realized it was a fake marriage and reported it to the Child Welfare Committee (CWC) under the Wardha police.
Evidence like the child’s birth certificate and DNA report supported her statement.

Conviction Under POCSO:

Defense Challenge: The man challenged the September 9, 2021, decision of the sessions court that found him guilty under the POCSO Act and the IPC. He said the sex was agreed upon.
Court's Decision: Justice Sanap did not accept the man's arguments. He said the victim was proven to be under 18 at the time of the crime.

- Even if there was a marriage, the sex against her will is rape.
- The court found no reason to ignore the evidence and agreed with the sessions court's findings.

Importance of the Ruling:

The ruling helps to protect young people under the law, making sure that having sex with someone under 18, married or not, is considered rape.
This decision sets an example for future cases involving sexual crimes against young people, showing the importance of age and agreement.
Women's Rights: The ruling shows the need to protect the rights of women, especially young ones, from being used and hurt.
Clear Legal Rules: The judgment makes it clear how the POCSO Act and the IPC should be used in cases involving young people, ensuring that the defense of agreed sex within marriage cannot be used to justify sexual crimes against minors.

Provisions Against Rape in the Indian Context:

Definition of Rape: Rape is forced sexual intercourse, which includes vaginal, anal, or oral penetration, whether by a body part or an object.

Section 375 of the Indian Penal Code (IPC) – Definition of Rape:

Rape is committed by a man when he has sexual intercourse with a woman under any of the following conditions:

Without her consent or against her will.
With her consent, obtained by using fear of death or hurt (against her).
With or without her consent, when she is under 18 years old.
When she cannot communicate consent due to various factors.

Crime of Rape and Punishment:

Death Sentence or Life Imprisonment: If the victim dies or goes into a vegetative state due to injuries inflicted during the rape.
Punishment for Group Rape: Section 376D of IPC stipulates punishment for all individuals involved in a gang rape.
Repeat Offenders: Section 376E of IPC allows the death penalty for a person convicted of rape for a second time.

Key Laws Related to Rape in India:

Criminal Law (Amendment) Act 2013:
1. Increased the minimum sentence for rape from 7 to 10 years.
2. If the victim dies or is left in a vegetative state, the sentence is increased to a minimum of 20 years or life imprisonment.
Protection of Children from Sexual Offences (POCSO) Act 2012:
1. Raised the age of consent to 18 (previously 16).
2. Criminalizes all sexual activities with minors, even if consent is given between two minors.
3. Amended in 2019 to enhance punishments for offences against children.

Rights of a Rape Victim:

Right to Zero FIR: Victims can file an FIR at any police station, regardless of jurisdiction.
Free Medical Treatment: As per Section 357C of CrPC, no private or government hospital can charge rape victims for treatment.
No Two-Finger Test: The practice of performing a two-finger test on rape survivors is banned.
Right to Compensation: Section 357A of the CrPC ensures compensation schemes for rape victims.

Important Judgements Related to Rape in India:

Tukaram and Ganpat vs. State of Maharashtra (1972) – Mathura Rape Case:
1. The case highlighted the need for reforms in rape laws after the accused was initially acquitted by the Supreme Court, leading to public outrage.
2. It led to changes in legal provisions to make rape laws more victim-friendly.
State of Punjab vs. Gurmit Singh (1984):
1. The Supreme Court directed the judiciary to avoid describing victims with "loose character" even if they had a history of sexual activity. It emphasized focusing on the act of rape, not the victim’s character.
Delhi Domestic Working Women v. Union of India (1995):
1. The Supreme Court laid down guidelines to ensure:
  - Legal representation for rape victims.
  - Anonymity of the victim in rape trials.
  - Interim compensation and medical help for victims.
  - The right to abortion if the victim becomes pregnant due to rape.
Chairman, Railway Board vs. Chandrima Das (2000):
1. The SC held that victims could receive compensation based on constitutional human rights and international human rights law, reinforcing the importance of providing reparations to rape survivors.

These provisions and judicial precedents are part of ongoing efforts to provide justice and dignity to rape survivors in India, addressing not only the legal framework but also societal attitudes and systemic challenges.