Allahabad High Court: In a criminal appeal filed against the judgment passed by the Additional Sessions Judge, wherein the convict was held guilty under Sections 363, 366, and 376 of the Penal Code, 1860 (‘IPC’), a Single Judge Bench of Anil Kumar-X, J. acknowledged that the judgment in Independent Thought v. Union of India, (2017) 10 SCC 800 fundamentally changed the legal landscape for sexual intercourse with minors in the context of marriage. Prior to 2017, a man could not be convicted for marital intercourse with a minor wife aged 15-18, as it was exempted under Section 375 IPC. Post-2017, after the Independent Thought ruling, such intercourse with a minor wife is statutory rape, and consent does not matter. However, the law change in 2017 was prospective, so it does not apply retroactively to incidents before the judgment. The Court found that in the present case, as the occurrence took place in 2005, the convict could not be held guilty under the laws as they stood at the time. Since the victim was above 16 years and the marriage was consensual, the Court held that the convict was not guilty of rape under Section 376 of the IPC.
Background
On 25-09-2005, the informant filed a written complaint stating that his daughter, approximately 16 years old, had gone outside to answer the call of nature when she was enticed away by the convict and two other individuals. In response, an FIR was registered on the same day.
The victim was recovered and was produced for medical examination. Her statement under Section 164 of the Criminal Procedure Code, 1973 (‘CrPC’) was recorded. Following the investigation, a chargesheet was filed, and the convict faced charges under Sections 363, 366, and 376 IPC.
The Trial Court had considered the testimony of the victim and her mother. The victim testified that she was taken away by the convict, who invited her on a trip. They traveled to Kalpi, where they stayed for a day and performed a Nikah, before proceeding to Bhopal, where they stayed in a rented room for a month. The victim claimed they lived together as a married couple during this period.
However, the Trial Court observed contradictions in the victim’s testimony, particularly her statement during cross-examination, where she indicated that the Nikah was performed in Kalpi and that she stayed with the convict as his wife in Bhopal. The Trial Court concluded that it could not be conclusively assumed that the victim was enticed or taken away by the convict.
The court also found the mother’s testimony unreliable. She stated that she had gone to answer the call of nature just two to three hours before the victim, making it impossible for her to have witnessed the incident as claimed.
Despite these contradictions, the Trial Court considered the victim’s minority at the time of the incident. The consent of the victim was deemed immaterial because of her age, and the Trial Court convicted the convict under Sections 363, 366, and 376 of the IPC.
Analysis and Decision
The Court considered two key factors to determine the convict’s culpability under Sections 363 and 366 of the IPC:
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Whether the victim was enticed or taken away by the convict?
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Whether the victim was a minor at the time she was allegedly kidnapped?
The offence of kidnapping from lawful guardianship is defined under Section 361 of the IPC, which states that whoever takes or entices any minor (under 16 years for a male or under 18 years for a female) out of the keeping of their lawful guardian without consent, is guilty of kidnapping. The Court noted that “taking” does not necessarily imply the use of force and could mean causing the minor to go with the offender. “Enticing” involves inducing the minor through some form of manipulation or allurement.
The Court referred to the Supreme Court’s ruling in Thakorlal D. Vadgdama v. The State of Gujarat, (1973) 2 SCC 413 which distinguished between “takes” and “entices.” The act of “taking” refers to the physical act of causing the minor to go with the offender, while “enticing” involves influencing the minor to act willingly, even if they would not have done so otherwise.
The Court also referred to the case of S. Varadarajan v. State of Madras, 1964 SCC OnLine SC 36, where it was emphasised that if the minor willingly joins the offender without any active inducement, the accused would not be guilty of taking the minor away from the lawful guardian.
In this case, the Court found that the victim’s actions, which included leaving her home on her own accord, did not amount to either “taking” or “enticing” by the convict. The victim had testified that she left with the convict voluntarily, and the circumstances suggested that the act was premeditated. No evidence was found to suggest that the convict had played an active role in influencing her decision.
Since the victim’s actions were voluntary, the Court held that the prosecution had failed to prove the offence under Section 363 (Kidnapping). Further, the victim’s testimony about her Nikah (marriage) with the convict, which took place at Kalpi and their subsequent life in Bhopal, indicated that their relationship was established after their marriage. Thus, the offence under Section 366 (Kidnapping or inducing to marry) was also not made out.
The next issue for consideration was whether the victim’s consent to marry at the age of 16 years was relevant to charges under Section 376 (Rape). Medical evidence showed that the victim was above 16 years, and her marriage was valid under Muslim personal law, which permits marriage upon the attainment of puberty. According to Muslim law, a marriage conducted after puberty is valid, and the victim had entered the marriage voluntarily.
However, the Court also examined the Prohibition of Child Marriage Act, 2006, which defines a “child” as someone who is a female under 18 years of age. While the Act makes child marriages voidable, it did not find the convict guilty of any offences related to the Prohibition of Child Marriage Act, as the marriage was solemnized in accordance with Muslim law.
The Court also considered the Supreme Court’s judgment in Independent Thought v. Union of India, (2017) 10 SCC 800 which held that sexual intercourse with a girl below 18 years of age, even if married, constitutes rape under the IPC, overriding any marital consent.
The Court found that in the present case, as the occurrence took place in 2005, the convict could not be held guilty under the laws as they stood at the time. Since the victim was above 16 years and the marriage was consensual, the Court held that the convict was not guilty of rape under Section 376 of the IPC.
Based on the above reasoning, the Court allowed the appeal and acquitted the convict of all charges. The judgment of conviction and sentence was set aside. The convict, who had been on bail, had his personal bond cancelled and sureties discharged. He was directed to furnish a new bail bond in accordance with Section 437-A CrPC, to the satisfaction of the Court concerned within two months.
[Islam @Paltoo v. State of UP, Criminal Appeal No. 6400 of 2007, decided on 19-09-2025]
Advocates who appeared in this case:
Counsel for Appellant(s): Mayank Bhushan
Counsel for Respondent(s): Govt. Advocate
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