Sex with a minor wife is considered rape; marital rape exception does not apply

The Court affirmed the apex court’s decision in Independent Thought vs. Union of India, which read down the marital rape exception for wives who are under 18.

The Nagpur bench of the Bombay High Court recently ruled that sex with a minor wife is considered rape under the age of 18, even if consensual, constitutes rape.

Justice GA Sanap made this observation while affirming the 10-year rigorous imprisonment sentence imposed on the man by the trial court.

“In view of the law laid down by the Apex Court, intercourse by the appellant with the victim being his minor 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 minor 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 upheld the Supreme Court’s ruling in Independent Thought vs. Union of India and Another, which narrowed the marital rape exception under the Indian Penal Code for wives under the age of 18.

The Court upheld the Supreme Court’s ruling in Independent Thought vs. Union of India and Another, which narrowed the marital rape exception under the Indian Penal Code for wives under the age of 18.

This case dates back to 2019. The minor girl had been in a romantic relationship with the accused for around three to four years. As their relationship developed, the victim started working in a shop to support her family and later rented a room in Wardha, where the man often visited her.

Despite the victim’s initial hesitance, the accused pressured her into having sexual intercourse and eventually coerced her into engaging in sexual activity with the promise of marriage.

The victim, trusting his promises, agreed to the relationship, believing they were in a committed partnership. However, the situation took a turn when the victim became pregnant.

The accused then organized a makeshift marriage ceremony in a rented room, attended by a few neighbors. The victim later described this event as a farce, lacking legal validity and conducted without the required formalities.

After this fake marriage, the accused continued to manipulate the victim, pressuring her to have an abortion and denying responsibility for the child, claiming she had conceived with another man.

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

During her cross-examination in the trial court, the victim clearly admitted 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 told the officials that he was her husband.

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

However, the Court rejected these arguments, asserting that the prosecution had effectively proven that the victim was underage at the time of the alleged offenses.

“In my view, this submission cannot be accepted for more than one reason. In this case, the prosecution has proved that the victim on the date of commission of the crime was below 18 years of age…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.