No Distinction Between Minor Victims Of Rape On The Ground Of Marriage: Delhi HC

The Delhi High Court in its judgment dated May 3, 2023, clarified that there is no distinct category within child victims of rape as those who are married and those who are not. Section 42A POCSO Act, 2012 was further referred to clarify that provisions of POCSO Act shall have an overriding effect on any other law to the extent of such inconsistency.

A division bench of Justice Manmohan and Justice Saurabh Banerjee, while disposing of a petition, observed, “It is well established that when a general law and a special law dealing with some common aspect are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant i.e. general law yields to special law should they operate in the same field on the same subject.”

Reference was made to the observations in Commercial Tax Officer v. Binani Cements, (2014) 8 SCC 319 in this regard.

With respect to the extension of the limitation period for filing complaints seeking voidability of child marriage under the Prohibition of Child Marriage Act, it was added, “Sections 472 and 473 CrPC empowers the Courts to extend the period of limitation, in the event it is satisfied that the facts and circumstances of the case necessitate an extension of the period of limitation or that the delay has been explained properly.”

The court agreed with the submission of the counsel for the respondent that Section 3(3) Prohibition of Child Marriage Act, 2006 does not extend the period of limitation to file complaints in cases of rape of minors who are married, however, in cases where Trial Court deems fit and appropriate, the period of limitation may be extended.

The counsel for the petitioner prayed for a declaration that provisions of POCSO Act, 2012 being a special enactment override provisions of CrPC, more clearly, Section 19 read with Section 21 of POCSO Act, 2012 override the restrictions imposed under Section 198(1) read with Section 198(3) of the CrPC, 1973.

It was further pleaded that Section 198(6) CrPC acts as an impediment to the protection of rights of minor girl children who are victims of marital rape, in as much as it restricts their right to legal remedy. Census data of 2011 was further referred to submit that there were 29,714 girl children less than 15 years who gave birth to one child and around 29,130 girl children who gave birth to two children. The third limb of argument was that the minor victims of marital rape may be allowed to file a complaint till they attain the age of 21 years in consonance with Section 3(3) of the Prohibition of Child Marriage Act, 2006.

Section 198(6) CrPC and Section 3(3) Prohibition of Child Marriage Act, 2006:

Section 198 of CrPC. Prosecution for offences against marriage. (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that-

(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.

Section 3 of Prohibition of Child Marriage Act, 2006. Child marriages to be voidable at the option of the contracting party being a child-

 (1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage

(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority

Case Title: Independent Thought v. Union of India | WP (C) 3811 of 2019