- In the case of Trimbak Arun Barude vs State of Maharashtra the Hon’ble Bombay HC has refused to grant anticipatory bail to a man charged for the offence of raping his minor wife under section 376 of IPC.
- The Court was of the opinion that the accused could not take up the defence of being married to the victim and that she had not resisted the act of sexual intercouse between them and the same was with consent.
- The instant case was filed after the minor girl gave birth to a baby boy and the hospital administration came to know that she was 17 years old. It was also stated that though the mother, father and the paternal uncle of the wife had knowledge that she was a minor, the marriage was performed with the applicant/husband. The case was lodged under sections 376 IPC read with sections 9, 10 and 11 of Prohibition of Child Marriage Act and sections 3 and 4 of POCSO Act.
- It was submitted by the applicant that the minor girl, along with her relatives had given the impression that she was, in fact, a major. He had also submitted that the minor had never shown any resistance during the solemnization of the marriage. She was well taken care of by the family of the applicant and that she had not complained about the conduct of the accused in the FIR. She also did not have any objection as to the grant of anticipatory bail to the applicant.
- The Court referred to the decision of the Apex Court in the case of Independent Thought vs Union of India AIR 2018 SC wherein the major inconsistency between the POCSO Act and the IPC was considered and the exception to section 375 IPC was modified and the age of 15 was replaced with the age of 18 years. The Court also observed that since the law was laid down by the Apex Court under Article 32 of the Constitution, it has to be interpreted in the same way in which it has been laid down in the Independent Thought Case.
- The Court, thus, observed that the applicant cannot take up such a defence that since he was married to the applicant/wife and she had not resisted whatever sexual intercouse had taken place between them. Child marriages are a hazard to the social fabric of the country, they have to be stopped and no one should be able to take advantage of any such situation.
- The Court also observed that a bona fide inquiry should be taken up at the time of marriage, not just of the behaviour of the girl or her parent’s financial condition, but also of the girl’s age. When the offence alleged against the applicant also involved such a complex social problem, the Court stated that it was not inclined to use the extraordinary relief provided under section 438 of CrPC.
- Hence, the application was dismissed.
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