Source: Bombay High Court 

Why in News?

Recently, the Bombay High Court in the matter of S v. State of Maharashtra has essentially reinforced the principle that marriage cannot be used as a defense in cases involving sexual offenses against minors, regardless of consent or marital status. 

What was the Background of S v. State of Maharashtra Case?  

• Original Criminal case was filed against the appellant for the offences punishable under Sections 64(2)(f), 64(2)(i), 64(2)(m), 65(1) of the Bharatiya Nyay Sanhita, 2023 (BNS) and Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) 
• Initial Relationship: 
  • The complainant was a minor girl 
  • The appellant and complainant were in a love affair 
  • The girl was 31 weeks pregnant at the time of filing the complaint  
• Alleged Sequence of Events: 
  • The appellant allegedly had forcible sexual intercourse with the complainant 
  • He continued the relationship on a false promise of marriage 
  • After the complainant conceived, she requested him to marry her 
  • The appellant performed an informal ceremony by exchanging garlands in front of neighbors 
  • He rented a house and made her believe she was his wife. 
  • He appellant pressured the complainant to abort the pregnancy 
  • Upon her refusal, he allegedly assaulted her 
  • The complainant returned to her parents' house 
  • The appellant allegedly assaulted her twice at her parents' house 
  • He denied paternity of the child  
• The complainant filed a case with the Child Welfare Committee (CWC) of Wardha Police. 
• During trial court proceedings, the complainant acknowledged showing photos of their garland ceremony to CWC officials 
• The appellant claimed the sexual acts were consensual 
• He argued that since they were married, the acts could not constitute rape. 
• This was a criminal appeal heard at the Bombay High Court's Nagpur bench 
• The appeal challenged a trial court judgment from Wardha district. 

What were the Court’s Observations? 

• The Bombay High Court observed that: 
  • On Consent and Marriage: 
    • The court held that sexual intercourse with a girl below 18 years is rape, regardless of marital status 
    • The defense of consensual sex with a wife is not available when the wife is below 18 years 
    • Even if there was a supposed marriage, non-consensual intercourse with a wife below 18 years constitutes rape 
  • On Evidence Assessment: 
    • The court found that the prosecution successfully proved the victim was below 18 years at the time of the crime 
    • The Medical Officer's evidence was found to be corroborative 
    • The birth certificate and DNA report supported the victim's testimony 
    • The court found the evidence on record to be cogent and concrete 
  • On Trial Court's Judgment: 
    • The High Court determined that the Trial Judge had not committed any mistakes 
    • The findings of the Trial Court were found to be supported by concrete reasons 
    • The court saw no reason to discard or disbelieve the evidence on record 
• The Bombay High Court explicitly rejected the appellant's argument that consensual intercourse with his wife cannot amount to rape 
• The court followed the Supreme Court's precedent regarding sexual intercourse with minors 
  • The marital status of the victim was held to be irrelevant when determining rape in cases involving minors 
• The Bombay High Court after making the above observations upheld the conviction under rape charges and POCSO Act. 
  • The court dismissed the appeal, maintaining the trial court's verdict 
• The Bombay High Court essentially reinforced the principle that marriage cannot be used as a defense in cases involving sexual offenses against minors, regardless of consent or marital status. 

What is the Offence of Rape? 

• About: 
  • Rape, as defined under the BNS is one of the most heinous crimes against women, with far-reaching physical, emotional, and psychological consequences. 
  • Under the BNS, rape is addressed comprehensively, with provisions detailing the elements of the offence, penalties for offenders, and procedural requirements for justice to be served. 
  • Section 63 of BNS defines the offence of Rape. 
• Understanding the Definition of Rape: 
  • According to the statute, rape occurs when there is sexual intercourse with a woman against her will, without her consent, under certain specified conditions. 
  • These conditions include instances where consent is obtained through coercion, deception, or when the woman is unable to give consent due to intoxication, unsoundness of mind, or being under the age of consent. 
• Elements of the Offence: 
  • To establish the offence of rape under the BNS, certain key elements must be proven beyond a reasonable doubt. 
  • These elements typically include the absence of consent, the presence of force, coercion, or deception, and the sexual penetration of the victim. 
  • Furthermore, the law recognizes that consent must be given voluntarily and with full understanding of the nature of the act, without any fear or duress. 
• Legal Penalties and Punishments: 
  • The BNS prescribes stringent penalties for individuals convicted of rape, recognizing the gravity of the offense and its impact on the victim. 
  • The severity of the punishment varies depending on the circumstances of the case, including the age of the victim, the use of force or violence, and the presence of aggravating factors such as gang rape or repeat offenses. 
• Amendments: 
  • In 2013, significant amendments were made to the IPC regarding rape laws through the Criminal Law (Amendment) Act, 2013, following the Mukesh & Anr v. State for NCT of Delhi & Ors (2017). 
  • These amendments introduced more stringent penalties, including the death penalty in cases of rape resulting in the victim's death or leaving her in a persistent vegetative state. 

What is the Age of Consent under POCSO Act, 2012? 

• The POCSO Act raised the age of consent for sexual activity to 18 years from 16 years in 2012 and it denies consensual sexual agency for young persons falling in the 16 to 18 years age bracket. 
• In the case of State of Madhya Pradesh v. Balu (2004), the Supreme Court held that the consent of minors has no value in the eyes of law, hence it is not valid. 
• In AK v. State Govt of NCT of Delhi (2022), the HC stated that the intention of POCSO Act, 2012 was to protect children below the age of 18 years from sexual exploitation and not to criminalize romantic relationships between consenting young adults. 
• In December 2022, the government told the Parliament that it does not have any plan to revise the age of consent. 

What is Criminal Law Amendment Act, 2013? 

• This Amendment Act raised the age of consent from 16 to 18, implying that sexual intercourse by an adult with a girl below 18 would amount to rape, irrespective of the presence of consent in a given case.