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Based on the victim’s testimony before the Child Welfare Committee, where she stated that the man was her husband, the accused argued that the sexual act was consensual, as it occurred between a husband and wife
The Bombay High Court recently ruled that non-consensual sex with a minor wife constitutes rape, and the marital rape exception does not apply in such cases.
“The defence of consensual sex with the wife is not available, when the age of the wife or the girl, who is alleged to be the wife, is below 18 years of age. The non-consensual intercourse with a wife, who is below 18 years of age, is a rape,” the judgement reads.
A single-judge bench of the Bombay High Court, comprising Justice G.A. Sanap, was hearing an appeal filed by a man challenging a Sessions Court judgment sentencing him to 10 years of imprisonment.
The victim had been in a relationship with the man for about 3-4 years. To support her family, she began working at a shop, where the man would often pick her up. The man allegedly coerced her into sexual activity on the promise of marriage.
After the victim became pregnant and requested that the man marry her, he staged a mock marriage ceremony in a rented house with a few relatives present. Later, he pressured her to abort the child and denied paternity, alleging that another man fathered the child. Following prolonged distress, the victim reported the incident to the police.
Based on the victim’s testimony before the Child Welfare Committee, where she stated that the man was her husband, the accused argued that the sexual act was consensual, as it occurred between a husband and wife.
However, the court relied on the Supreme Court judgment in Independent Thought vs. Union of India & Anr. and rejected this defence, noting that non-consensual sex with a minor wife constitutes rape, and the marital rape exception does not apply in such cases.
“The legal position has been enunciated by the Hon’ble Apex Court as above. In view of this, in the case on hand, the defence of consensual sex with the wife cannot be accepted. Even if it is assumed for the sake of argument that there was so called marriage between them, in view of the allegations made by the victim that it was sexual intercourse against her consent, it would constitute rape,” the judgement reads.
Accordingly, the bench dismissed the appeal and upheld the sentence imposed by Sessions Court.
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