Marrying minor victim does not sanctify offence of rape: Delhi HC

Merely because sexual abuse resulted in marriage between the victim and the accused or in the birth of a child, it does not mitigate or sanctify the offence of rape, the Delhi High Court has said.

The court was hearing the bail petition of a man accused of kidnapping and raping a 14-year-old girl, who he claimed to have subsequently married in a temple.

Denying bail to the petitioner, Justice Anoop Kumar Mendiratta said "such incidents of luring a minor and entering into a physical relationship" cannot be treated in a routine manner.

The victim went missing in September 2019 and was eventually recovered from the house of the petitioner in October 2021 along with her 8-month-old daughter. She was also found to be pregnant.

The judge emphasised the consent of a minor is immaterial in rape law and "even the minor girl's infatuation with the alleged kidnapper cannot be permitted as a valid defence" under the Indian Penal Code.

Rape is a crime against the entire society and "leaves little option for the minor child but to toe the line of the accused," the court said.

"Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident," the court said in its order dated July 22.

"Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in the birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law," it said.

The prosecution opposed the petitioner's bail plea and informed the court that he was aged around 27 at the time of the alleged incident. It also said the consent of the minor victim cannot be recognised in law.

The prosecution also pointed out that the petitioner's alleged marriage with the victim was in violation of the provisions of The Prohibition of Child Marriage Act.

The court stated that sexual intercourse with a minor wife, regardless of her willingness or consent, is also rape and sexual exploitation of children is a heinous crime which needs to be effectively addressed.

It noted that there was no evidence suggesting that the victim had consented to be taken from her parents' lawful custody. The petitioner misled the entire prosecuting agency, it said.

The court said the sexual exploitation by the petitioner clearly fell within the offence of aggravated penetrative assault under the Protection of Children from Sexual Offences (POCSO) Act even if it is claimed that the 'act' was consensual.

"Since the victim was minor at the time of occurrence, even the claim that sexual intercourse was with her consent, is immaterial as the circumstances clearly point out that the minor had been enticed and lured with an intention to have the intercourse," it said.

"Considering the facts and circumstances of the case, conduct of accused/petitioner and the fact that the victim was aged only about 14 years and 06 months at the time of incident, the petition is dismissed," the court said.