{"id":292233,"date":"2023-05-15T15:00:34","date_gmt":"2023-05-15T09:30:34","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=292233"},"modified":"2023-05-15T15:15:17","modified_gmt":"2023-05-15T09:45:17","slug":"if-minor-and-accused-are-married-physical-relationship-will-be-assumed-if-not-specifically-denied-legal-news","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/05\/15\/if-minor-and-accused-are-married-physical-relationship-will-be-assumed-if-not-specifically-denied-legal-news\/","title":{"rendered":"No presumption of rape can be made out between minor wife and husband if physical relationship is specifically denied: Allahabad High Court"},"content":{"rendered":"
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Allahabad High Court:<\/b> In a batch of bail applications, wherein the common issue was whether material collected during investigation such as further\/subsequent statement given by a victim before Child Welfare Committee (‘CWC’) that she has lived as wife with the accused, would be sufficient evidence for Investigating Officer (‘IO’) to take a different or contrary view of statements of victim recorded under Sections 161<\/a> and 164<\/a> of the Code of Criminal procedure, 1973<\/a> (‘CrPC’), wherein she has either denied or does not refer allegation of physical relationship with accused with or without her consent, Saurabh Shyam Shamshery, J has held that if there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out.<\/p>\n

The Court said that it cannot interfere or direct IO to conduct any investigation in a particular manner. However, it does not mean that if any aggrieved party seeks direction for fair investigation, the Court becomes helpless rather it can exercise powers granted under Sections 156<\/a> or 482<\/a> CrPC<\/a> or under Article 226<\/a> of the Constitution of India<\/a>, as the case may be.<\/p>\n

The Court noted that the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015<\/a> (hereinafter referred to as “JJ Act, 2015”) provides statutory obligation on Child Welfare Committee to have interaction with victim to provide her support and also to provide counselling, therefore, any statement of victim recorded before CWC cannot be thrown away and it has certain evidentiary value and it could be made a part of investigation, i.e., part of case diary. Further, Section 19<\/a> of Protection of Children from Sexual Offences Act, 2012<\/a> (“POCSO Act”) provides a duty on a citizen to inform authority concerned, if any offence is committed on a minor victim.<\/p>\n

The Court further stated that victim is entitled to ask IO to record her ‘Mazid Bayan’ or to request IO to produce her before Magistrate concerned for purpose of recording a subsequent statement before him as well as she has also liberty to record her statement before CWC. It may not be ruled out that victim may not be able to say truth before Police as well as before Magistrate, but after counseling she muster strength to say truth before CWC and, therefore, in these circumstances, statement before CWC would be relevant and it will have evidentiary value being a statement recorded under the provisions of JJ Act, 2015<\/a>. Also, the Trial Court can consider it according to principles of evidence. It may be a valid ground for the Magistrate to record a subsequent statement under Section 164<\/a> CrPC<\/a>.<\/p>\n

Thus, the Court concluded the following:<\/p>\n