In a significant order, Madhya Pradesh High Court has denied bail to a husband who was accused of raping his minor wife under the Protection of Children from Sexual Offences Act. The court had read down exception 2 to Section 375 of the Indian Penal Code.
“A physical relationship with a wife who is below the age of 18 years will amount to rape,” noted Madhya Pradesh High Court.
Justice G.S. Ahluwalia noted that in the case of Independent Thought Vs. Union of India and another reported in (2017) 10 SCC 800, the Supreme Court had read down the provision of exception 2 to Section 375 of IPC and had held that physical relationship with a minor wife, i.e., below the age of 18 years would also come within the category of rape.
That exception 2 allowed the husband of a girl child (between 15 to 18 years of age) blanket liberty and freedom to have non-consensual intercourse with her. The husband in such cases is protected from getting punished for rape.
The Supreme Court had increased the age of consent for such acts from 15 to 18.
Exception 2 To Section 375 of IPC
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The High Court was hearing the bail plea of accused Ajay Jatav. His bail plea was rejected for the fifth time. He was arrested on January 31, 2021.
Ajay was booked under Section 363 (punishment for kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage), 376 (punishment for rape) of the Indian Penal Code, and Sections 5 and 6 of the POCSO Act.
Awdhesh Sharma, counsel appearing for the accused, contended that the girl’s father had submitted that she was 17 years and 6 months old when the crime was committed. But the court refused to grant bail on that ground.
Advocate Sharma had also contended that the victim herself had admitted that they developed physical relationship only after she turned 18.
However, the state cited a medical report which stated that the girl gave birth to a child on September 16, 2020 which means that she got pregnant in December 2019. As per documents, her date of birth is February 1, 2002. Therefore, it was clear that she had become pregnant when she was a minor.