HC upholds acquittal of Muslim man accused of minor wife’s rape — no intercourse ‘before marriage’

Delhi HC's ruling comes amid conflicting orders from various high courts on whether a minor Muslim girl can enter into a valid marriage, and applicability of POCSO Act to such cases.

File photo of Delhi High Court | PTI

New Delhi: The Delhi High Court last week upheld the acquittal of a Muslim man accused of raping his then 15-year-old “wife” in 2014, holding that since the alleged victim was his spouse, the alleged crime cannot be classified as rape. The verdict has again raised questions over the applicability of the Protection of Children from Sexual Offences (POCSO) Act in such cases.

The court was hearing an appeal by the State of Delhi against a 2016 decision of the Additional Sessions Judge in Delhi, who had acquitted accused Kayum of “aggravated penetrative assault” on his then minor wife. The matter was being heard under the Protection of Children from Sexual Offences (POCSO) Act.

The case had been originally filed against the accused by the minor’s mother, who allegedly did not know of her marriage, after she found her daughter to be pregnant.

With its order on 17 August which ThePrint has seen, the high court has now effectively not only accepted the validity of the “marriage”, but also physical relations with a minor. 

This comes in a series of conflicting orders from various high courts in cases related to whether a minor Muslim girl can enter into a valid marriage, and the applicability of the POCSO Act to such cases.

In a similar case, the National Commission for Protection of Child Rights (NCPCR) had approached the Supreme Court in August last year over a Punjab & Haryana High court decision delivered in June the same year, which had upheld a 16-year-old Muslim girl’s marriage. The Supreme Court, on 13 January this year, stayed the operation of the order and asked it to not be treated as “precedent” (binding for future decisions).

The case

In the present case, the victim told Delhi High Court that she married the accused, also her brother-in-law, in December 2014 when she had gone to attend a marriage in Bihar. The accused lived a few lanes away from her parents’ house. Her parents were not aware of the marriage, she said.

She claimed that the accused had physical relations with her and consequently, she got pregnant three months after the marriage. On detection of pregnancy at a local hospital, the victim’s mother lodged a police complaint. A First Information Report (FIR) was registered under Section 5 (1) of the POCSO Act which attracts punishment for aggravated sexual assault to be not less than 20 years and up to life imprisonment.

Notably, the girl’s statement in the court that physical relations were made after the marriage contradicts the February 2015 FIR which said that the accused had visited her house in October and November 2014 “four to five times and committed rape upon her”. The alleged marriage only took place in December that year.

The high court upheld the directions of the trial court that since the victim has herself deposed that no physical relations were made before marriage, the accused was not guilty of any offence.

“We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent with the victim cannot be termed as rape,” the high court said. “The respondent has been rightly acquitted,” the bench added.

POCSO & personal law

This is not the first time that a Muslim man has been given protection, despite POCSO, for alleged rape of a minor wife.  

On 31 October last year, in the case of a man accused under the POCSO Act of marrying and impregnating a minor Muslim girl, the Karnataka High Court said that the Act will override personal law as it is a special act. However, the court still granted bail to the accused because the victim was 17 and said to be capable of understanding the consequences of her actions.

However, while ruling in another case, the Kerala High Court said in November last year that physical relationship with a minor will continue to be an offence under POCSO, despite the validity of marriage under personal law.

This conflict between personal law and POCSO is presently pending before the Supreme Court.

(Edited by Smriti Sinha)