Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J., quashed a rape case against a boy which was filed by his minor wife.

The FIR mentioned that the prosecutrix was married to the petitioner- accused on 07-02-2015 at the age of 11 years and that she was forced to maintain the physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. During the pendency of the petition, an affidavit was filed by the complainant, stating that the dispute had been amicably resolved between the families and she does not want to further pursue the criminal prosecution and counsel for both respective parties have submitted that in the respective communities of both the boy and the girl, the custom of child marriage was still prevailing and hence, the prosecutrix and the petitioner were married by their parents when they were minors.

The Court after perusing the records after the completion of investigation observed that it was an established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor and the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. Further, the Court was not detrimental or adverse to the settlement arrived at between the families, stating that the reckless and irresponsible demeanor of the parents of both the boy and the girl cannot be ignored. The Court further stated,

The parents of the prosecutrix were well aware of all the consequences of getting her married at the age of eleven. Uniformly, the parents of the petitioner are also responsible. Both the parents have imprisoned the minors in marriage and forced them to develop relationship of husband and wife which is a gross violation of their human rights. They are forced by the parents to face the rigors of married life at the tender age despite their being a prohibition under the law. Thus, the genesis of the impugned FIR lies in the child marriage arraigned by the respective parents.

The Court opined that the criminal machinery alleging such serious offences under Penal Code, 1860 and POCSO cannot be allowed to be misused and the parents of such children who resort such tactics cannot be let-off easily without fastening any accountability.

The Court while quashing the FIR against the boy imposed cost on the families of the prosecutrix and the petitioner holding them responsible for ruining their childhood by dragging them in such a disreputable controversy. The Court quoted from the judgment of the Supreme Court in Aarushi Dhasmana v. Union of India, (2013) 9 SCC 475 where K.S.P. Radhakrishnan, J., had observed,

            “Law of this land has always recognised the rights of parents with their wards/minors and first and foremost consideration of the Court is “welfare of the children”, which overrides the views or opinions of the parents.”[Applicant v. State of Gujarat, R/Criminal Misc. Application No. 12832 of 2020, decided on 20-10-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In order to harmonise Exception 2 to Section 375 IPC of the with the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the spirit of other pro-child legislations and the human rights of a married girl child, the bench of Madan B. Lokur and Deepak Gupta, JJ held that the Exception 2 to Section 375 of the IPC to should 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.” Both the judges wrote concurring but separate judgments.

Lokur, J, stating that holding sexual intercourse with a minor wife was the only way by which the intent of social justice to the married girl child and the constitutional vision of the framers of the Constitution could be preserved, said:

“Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child.”

Drawing an analogy between various laws land especially with POCSO Act, Lokur, J said that while the husband of a married girl child might not have committed rape for the purposes of the IPC but he would nevertheless have committed aggravated penetrative sexual assault for the purposes of the POCSO Act. He added that there is also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. He said:

“marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC.”

Gupta, J, on the question that whether the Court was creating a new offence, explained that the Court was merely reading down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO since the offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. He said:

“this Court is not creating any new offence but only removing what was unconstitutional and offensive.”

He also noticed that Exception 2 to Section 375 IPC was the only provision in various penal laws which gave immunity to the husband. He said:

“The husband is not immune from prosecution as far as other offences are concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape.”

He further added:

“It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the “victim wife” is aged below 18 years i.e. below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse.”

The Court, hence, held that Exception 2 to Section 375 IPC was arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India. It was, however, made clear that the verdict will apply prospectively. [Independent Thought v. Union of India, 2017 SCC OnLine SC 1222, decided on 11.10.2017]