The Nagpur bench of the Bombay High Court recently ruled that sexual intercourse between a man and his wife, where the wife is below the age of 18, would amount to rape, even if the act is consensual.

The bench of Justice GA Sanap, while upholding the trial court's sentence of 10 years of rigorous imprisonment for the accused, observed that...

"In view of the law laid down by the Apex Court, intercourse by the appellant with the victim being his wife would not constitute rape or penetrative sexual assault, cannot be accepted. It needs to be stated that the sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not...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 Court, therefore, affirmed the Supreme Court's decision in Independent Thought vs. Union of India and Another, which had read down the marital rape exception under the Indian Penal Code for wives under the age of 18.

Case Brief:

The case in question dates back to 2019, when the minor victim had been in a romantic relationship with the accused for about three to four years. As their relationship developed, the victim started working in a shop to support her family and eventually rented a room in Wardha, where the accused regularly visited her.

Despite the victim's initial reluctance, the accused pressured her into sexual intercourse and ultimately coerced her into engaging in sexual activity, promising that he would marry her.

The victim, believing the accused's assurances, consented to the relationship, under the impression that they were in a committed partnership. However, the situation took a turn when the victim became pregnant.

In response, the accused arranged a makeshift marriage ceremony in a rented room, with a few neighbors in attendance. The victim later described this event as a farce, lacking legal validity and conducted without the required formalities.

Following the sham marriage, the accused continued to manipulate the victim, pressuring her to have an abortion while denying any responsibility for the child. He claimed that she had conceived with another man.

After months of distress, the victim finally reported the matter to the police, resulting in the registration of a case against the accused.

During her cross-examination in the trial court, the victim mentioned that she had filed a complaint with the Child Welfare Committee (CWC) section of the Wardha Police. She referred to photographs with the accused, in which they were seen garlanding each other, and informed the officials that he was her husband.

Relying on this admission, the defense argued that the sexual act was consensual, as it involved the victim and her husband.