Sex with minor wife amounts to rape, says Bombay High Court

Bombay High Court rules that sexual intercourse with a minor under 18 is rape, even if consensual. Accused's appeal dismissed.

In a significant ruling, the Bombay High Court has affirmed that sexual intercourse with a minor wife aged below 18, whether consensual or not, amounts to the offence of rape.

The defence of ‘consensual intercourse with wife’ cannot be accepted under the law, observed the Single Judge of the Nagpur Bench, Govind A. Sanap, while upholding the 10-year sentence imposed on a 24-year-old man, who was arrested in 2019 on a complaint of rape filed by his wife.

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Earlier, a sessions court had convicted him on rape charges under the Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code. 

“In view of the law laid down by the Supreme Court, the argument that intercourse by the appellant [the accused] with the victim being his wife would not constitute rape or penetrative sexual assault, cannot be accepted. It needs to be stated that sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not,” said the order passed by the High Court on November 12.  

The defence of ‘consensual sex with 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, and non-consensual intercourse with a wife below the age of 18 is rape, Justice Sanap said.  

The accused and the girl were in a relationship for four years and were neighbours. When she got a job in a nearby town, the accused followed her there and eventually coerced her into sexual intercourse, leading to pregnancy. When she asked him to marry her, he arranged a fake marriage in a rented room, where they exchanged garlands in the presence of a few neighbours. Later, he forced her to undergo abortion, which she refused. He then began to physically assault and abuse her. He also refused to accept the child and accused her of getting pregnant from another man.