The counsel representing the accused had argued that the relationship between the victim and accused was voluntary and her age has not been verified in accordance with the law. (File)Dismissing the bail petition of an accused in a rape case, the Delhi High Court Friday said merely because such sexual abuse ended in tying of knot between the minor victim and the accused and resulted in the birth of a child, it does not mitigate the act in any manner since the consent of a minor is immaterial and inconsequential in law.
“Such incidents of luring a minor and entering into a physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner, since rape is not only a crime against the minor victim but is a crime against the entire society which leaves little option for the minor child but to toe the line of the petitioner/accused,” said Justice Anoop Kumar Mendiratta, while denying bail to the accused, who is 27 years old and has been in custody since October 2021.
The victim in the case was 14 years and six months old when her mother filed a case of kidnapping in July 2019. Following a habeas corpus petition before the court, the girl was finally recovered in October 2021 along with her 8-month-old child from the house of the accused. She was also about one and a half months pregnant at the time. During the investigation, the accused allegedly suppressed the information about the whereabouts of the victim and it was only based on mobile technical surveillance that she was recovered.
The counsel representing the accused had argued that the relationship between the victim and accused was voluntary and her age has not been verified in accordance with the law. It was also argued that the victim or wife of the accused is suffering on account of his incarceration. He is required to look after the victim as well as the minor children, the counsel contended.
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Police opposed the petition saying that the entire machinery was kept in the dark by the accused who concealed the whereabouts of the victim. She was studying in class IX at that time, the court was told. The alleged marriage with a minor was in violation of the law and also consent of the minor cannot be recognised, the prosecution argued.
Justice Mendiratta said child marriage stands prohibited and also IPC section 375 makes it clear that if the woman is under 18 years of age, then sexual intercourse with her with or without her consent is rape. “Even a sexual intercourse with wife under 18 years of age regardless of her willingness or consent is rape as held in Independent Thought vs Union of India… giving a meaningful reading to exception 2 to section 375,” said the bench.
The court said that merely because the accused has claimed that marriage had been performed in a temple, the same cannot “sanctify” the offence. “The claim of marriage is also yet to be proved on record. It is imperative to keep in perspective that the statutes concerning the rights of children are special laws and must prevail and take precedent for ensuring the benefit of children,” reads the order.
Justice Mendiratta also said that circumstances clearly point out that the minor had been enticed and lured with an intention to have intercourse. “Considering the facts and circumstances of the case, the conduct of accused/petitioner and the fact that victim was aged only about 14 years and six months at the time of the incident, the petition is dismissed,” said the court.
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