Follow TNM's WhatsApp channel for news updates and story links.
The Kerala High Court has refused to quash a Protection of Children from Sexual Offences (POCSO) case against a 27-year-old man from Palakkad, holding that a person who has sexual intercourse with a girl below 18 can be prosecuted for rape under Section 376 of the Indian Penal Code (IPC), even if the girl is his wife.
The accused, who approached the High Court seeking to quash the case, claimed that his wife had filed the complaint “with the ulterior motive of wreaking vengeance” against him. He had married her on July 23, 2021, when she was 17, according to Islamic customs.
According to the First Information Statement (FIS), the accused took the girl shopping on October 23, 2021, and then took her to his house. When she insisted on sleeping with his mother, he allegedly refused and confined her in his bedroom and later forcibly had sexual intercourse with her. The FIS states that the act was repeated over the following four days. The accused was subsequently charged under sections of kidnapping as well.
The petitioner’s counsel argued that sexual intercourse by a man with his own wife does not constitute rape if the wife is not below 15 years of age. The counsel also described the case as a “classic example of an abuse of the process of law”.
Justice Jobin Sebastian rejected the argument, noting that, by the admission of the petitioner’s counsel, the girl was 17 at the time of the alleged offences and therefore fell within the definition of a “child” under Section 2(1)(d) of the POCSO Act.
The court said that sexual intercourse with a girl below 18 would constitute aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act, apart from attracting the offence of rape under Section 376 of the IPC.
The petitioner also claimed that the criminal proceedings could not continue because he had married the girl under Muslim personal law. However, the court said there was no documentary evidence establishing the solemnisation of the marriage.
“Even assuming for the sake of argument that a marriage was solemnized as per Muslim religious rites and ceremonies, the same will not salvage the petitioner's criminal liability, particularly since the girl was seventeen years old at the time of the alleged marriage and subsequent sexual acts,” the court said.
The court further held that the POCSO Act would apply when one of the parties to a marriage is a minor, “irrespective of the validity or otherwise of the marriage under personal law”, citing the Supreme Court’s judgment in Independent Thought v. Union of India.
On the rape charge, the petitioner sought protection under Exception 2 to Section 375 of the IPC, which excludes sexual intercourse or sexual acts by a man with his wife from the definition of rape if the wife is not under 15 years of age.
Justice Sebastian said whether a valid marriage existed between the accused and the complainant was a matter of evidence that would have to be decided at trial. However, he noted that the Supreme Court’s ruling in Independent Thought makes clear that a person who has sexual intercourse with a girl below 18 can be prosecuted for rape even if she is his wife and is between 15 and 18 years old.
“Therefore, in the case at hand, the accused cannot escape prosecution with the aid of Exception 2 to Section 375 IPC,” the court said.
The High Court also cited the judgment in Khaledur Rahman v. State of Kerala and Another, observing that the allegations in the present case prima facie disclosed the ingredients required to attract the offences under the POCSO Act.
“…The Court has no hesitation in holding that the allegations, if accepted at face value, prima facie disclose the commission of the alleged offences against the petitioner. Consequently, this Court is of the considered view that this is not a fit case for exercising inherent jurisdiction under Section 528 of the BNSS to quash the FIR, final report, or further proceedings arising therefrom,” the order reads.
Dismissing the petition, the court said that the observations in order are made solely for the purpose of deciding the present petition and shall not influence the trial court while considering the case on its merits.