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The 15 year old minor girl complained of abdominal pain, after her husband (also her sister’s husband) committed rape on her. However, court found since she was married to him at the time, it will not be rape
While upholding the acquittal of a Muslim man accused of raping his minor wife, the Delhi High Court has observed that, “Physical relationship with a child victim (wife) who was almost fifteen years of age, cannot be termed as rape".
According to Muslim law, a Muslim girl over the age of 15 years, is competent to enter into a contract of marriage with the person of her choice and sex with such a girl is not considered an offence.
The bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said, “We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent with the victim, cannot be termed as rape. The respondent has been rightly acquitted”.
The bench dismissed an application filed by the State seeking Leave to Appeal against the judgment of acquittal dated November 15, 2016.
An first information report (FIR) was registered by the Delhi Police on the complaint of the mother of the minor victim, stating that in the month of October and November 2014 while her child was alone, Mohd Kayun, who was also the victim's sister's husband i.e. “jija”, came to her house four to five times and committed rape upon her. When she felt pain in in her abdomen, her mother took her to hospital, where her pregnancy was confirmed.
In the month of December, 2014 the minor victim, along with her mother, Kayum and his wife had gone to native place in Bihar to attend the marriage of their cousin sister. After attending the marriage she got married to accused Kayum. The mother was unaware of this marriage.
Therefore, in the month of February, 2015 her mother called the police and on the same day she along with her mother went to the police station, where her mother made a complaint.
“The learned ASJ had rightly observed that in view of the testimony of the child that she got married to the respondent in the month of December, 2014 and only thereafter did they have physical relationship, no offence under Section 6 read with Section 5(1) of POCSO Act was made out and the respondent was rightly acquitted”, the court said in its order dated August 17.
Case Title: State Govt of NCT of Delhi v. Mohd Kayum
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