Consensually impregnating minor wife: HC quashes rape FIR against man for sleeping with minor wife

The petitioner (accused husband) had moved the high court seeking quashing of the FIR registered in February 2023 under Section 376(2)(n) of the IPC and Section 6 of the Pocso Act, 2012.

As per the case, the minor girl (‘victim’) had married the petitioner of her own accord on September 12, 2022. She was only 17.5 years old at the time. The matter came to light when during the course of their marriage, she got pregnant.

When she was eight months’ pregnant she visited the Government Multi Specialty Hospital (GMSH), Sector 16, Chandigarh, along with her husband, complaining of stomach pain. Suspecting the girl to be a minor, the doctors asked for a copy of her Aadhaar card.

On finding their suspicions to be true, the doctors reported the matter to police in view of Section 19 of the Protection of Children from Sexual Offences (Pocso) Act.

Thereafter, the petition stated, the aforementioned FIR was registered, citing the girl (minor wife) to be the complainant, without her consent and forcing her to sign some documents. Consequently, police arrested the petitioner.

The ‘victim’ girl then gave birth to a baby boy in February 2023 at the GMSH. But the baby died in March 2023 due to ill health.

The petitioner, meanwhile, was provided a legal aid counsel who moved his bail application before the court concerned. However, it was rejected by the Fast Track Special Court, Chandigarh.

Thereafter, the high court took suo motu cognisance of the matter and issued directions to the District Legal Service Authority (DLSA) to get a legal aid counsel and get the statement of the accused and their family members recorded. It was also directed that after getting their statements, the legal aid counsel can file a petition before the high court and get the FIR quashed in accordance with law.

After the statements were recorded, a compromise was arrived at wherein it was stated that there is no ill will between the parties and the victim has no objections if the FIR is quashed.

The state, meanwhile, opposed the plea for quashing of the FIR on the grounds that the ‘victim’ was eight months’ pregnant at the time of registration of the FIR which is sufficient to invoke the Pocso Act as well as to attract Section 376(2)(n) of the IPC, and since she was a minor, her consent for the sexual act at the time holds no relevance.

Vaibhav Sharma, amicus curiae, however pointed out that the petitioner and the ‘victim’ be given the advantage of the consensual nature of their relationship that culminated into marriage as well as their young age and the nature of their circumstances.

After hearing the matter, a bench of Justice Harpreet Singh Brar said that the genesis of the instant FIR lies in the reporting of the victim’s pregnancy by the doctors under Section 19 of the Pocso Act.

“While the intent behind the statutes criminalising sexual exploitation of women, especially children is noble in all senses of the term, it must be understood that application of such statutes cannot be divorced from the reality of the situation. The criminal proceedings have wreaked havoc on the lives of the instant petitioner and his wife. The couple also, unfortunately, lost their newborn child in the process of securing justice,” said the bench.

Justice Brar added, “The overarching aim of justice is to serve what is deserved and accountability and fairness are identifying features of the same. However, the said purpose would be defeated if justice is viewed in its absolute mechanical form, devoid of context and nuance. In a welfare state, it is of the utmost importance that the vulnerability of the disadvantaged is recognised and the application of justice is viewed from a renewed perspective. The plight of this young married couple who have recently lost a child and are running from pillar to post to restore normalcy to their lives can only be truly addressed when compassion drives justice.”

Section 5 of the Hindu Marriage Act, 1955, says a marriage may be solemnised between any two Hindus, if the bridegroom has completed the age of 21 and the bride, the age of 18 years at the time of the marriage.

The court observed, “The marriage between two persons who do not satisfy the age criterion does not become void ab initio. Such a marriage would be voidable at the instance of the minor party.

Therefore, in absence of such declaration in view of the Prohibition of Child Marriage Act, 2006, the marriage subsists and the husband can be the legal guardian of his minor wife, as reaffirmed by a division bench of this court in Mamta v. Rohan Verma 2022(2) R.C.R.(Civil) 349.”

The bench thus held that if the criminal proceedings against the petitioner are allowed to continue, not only will it lead to unnecessary incarceration of the petitioner but also leave the victim bereft of financial and emotional support.