Sex With Wife Above 16 Years Of Age Before 2017 Not Rape: Allahabad High Court Sets Aside 2007 Conviction Order

The Allahabad High Court has held that a man can be convicted for having sexual intercourse with minor wife of over 15 years age, only after Supreme Court's judgment in Independent Thought vs Union Of India (2017), and not prior to that.In Independent Thought case, the Supreme Court read down the exception 2 to Section 375 (rape) IPC, which provided that sexual intercourse with wife above 15 years of age is not rape— to read as wife of 18 years of age or above. The Apex Court specifically clarified that this amendment applied prospectively and not retrospectively. Following this judgment, Justice Anil Kumar-X set aside a 2007 conviction order for alleged marital rape of a girl over 16 years of age. The bench held,“From the foregoing observations as held by Hon'ble Supreme Court in Independent Thought (supra), it is very much apparent that exception 2 of Section 375 IPC has been struck down on the ground that said provision is inconsistent with the provisions of POCSO Act and is also violative of Article 14, 15 and 21. But it has also been held that the said judgment of Supreme Court will have prospective effect. In this particular case, it is apparent that alleged occurrence had occurred way back in the year 2005. Therefore, appellant cannot be held guilty for commission of rape because victim at the time of occurrence was above 16 years and physical relations between the two had taken place after solemnisation of their marriage.”Appellant was convicted under Sections 363, 366 and 376 IPC. In the FIR, it was alleged that the appellant had enticed away the informant's 16 year old daughter. Once she was recovered, her medical examination was conducted and her statement was recorded. Basis this, charges under Section 363, 366, and 376 IPC were framed against appellant. Appellant pleaded that he and the victim had entered into marriage on 29 August 2005 and also produced the Nikahnama. The Trial Court observed that based on victim's statement it could not be inferred that she was enticed away. It observed that the parties performed Nikah and stayed together for a month as a happily married couple. However, the Trial Court convicted the appellant as the victim was a minor. While deciding appeal against the conviction order, Justice Kumar observed that the parents' testimonies did not reveal anything to show enticement by the appellant in taking away the victim. Further, the Court noted that the victim in her statement had revealed that when the appellant asked her to go on a trip with her, she willingly went and there was no trace of manipulation on his part. It held that merely because he asked her to go on a trip with him, did not show "enticing" and "taking" for offence under Section 363. “Act of "enticing" and "taking" means that accused has played some active role by which victim was allured or influenced to accompany him. In the foregoing circumstances it can be safely concluded that prosecution has failed to lead any evidence to suggest that victim was either "enticed" or "taken" by appellant. Hence offence under Section 363 I.P.C against appellant is not made out.”The Court observed that since she willingly eloped with him and the physical relationship between the appellant and victim was after the solemnization of their marriage, it could not be said that the victim was kidnapped. Thus, no offence under Section 366 IPC was made out. Regarding the sex with a minor girl and child marriage, the Court observed that under the Mohammedan Law, prescribed minimum marriageable age in 15 years. It noted that under Prohibition of Child Marriage Act,2006 the minimum age for marriage for a female is 18years. The question before the Court was which law would prevail. Referring to the judgment of the Apex Court in Independent Thoughts, the Court observed,“In the said judgement, provisions of IPC and POCSO Act were also discussed and it was held that that there is no difference between the definition of rape as laid down in IPC and POCSO, but definition of rape is somewhat more elaborate. Considering Section 42-A of POCSO Act, it was held that provisions of the POCSO Act will override the provisions of any other law (including the IPC) to the extent of any inconsistency.”Observing that the amendment to Section 375 regarding rape of minor wife was made with prospective effect from the date of the judgment, the Court held that appellant could not be held guilty for sex after marriage with his minor wife in 2005. Accordingly, the Court set aside the conviction order.Click Here To Read/Download Order

Sex With Wife Above 16 Years Of Age Before 2017 Not Rape: Allahabad High Court Sets Aside 2007 Conviction Order

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