Physical Relation with 15-Year-old Wife Under Muslim Law Can’t Be Called Rape: Delhi HC

While upholding the acquittal of a man accused of raping his wife, the Delhi High Court on Thursday observed that “physical relationship” with a minor, almost 15 years of age, cannot be termed as rape, according to Muslim law.

The bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said, “We find that since the child victim was the wife who was almost 15 years of age, the physical relationship of the respondent with the victim, cannot be termed as rape. The respondent has been rightly acquitted”.

The bench dismissed an application filed by the state seeking Leave to Appeal against the judgment on November 15, 2016, in which the accused was acquitted of the offence punishable under Section 376.

An FIR was registered by the Delhi Police on the complaint of Zarina stating that in October and November 2014 while her child was alone, the respondent (victim’s sister’s husband) came to her house four to five times and raped her. When she felt pain in her abdomen, her mother took her to hospital, where her pregnancy was confirmed.

In December, 2014, she along with her mother, respondent and his wife had gone to native place in Bihar to attend the marriage of their cousin. After attending the wedding, she got married to accused Kayum.

Thereafter, she along with her mother and respondent husband and sister returned to Delhi. She further stated that the respondent-husband thereafter made physical relations with her on various occasions. She became pregnant and this fact came to the knowledge of her mother.

Her parents, however, were not aware of her marriage with the accused.

Therefore, in February, 2015, her mother went to the police station and filed a complaint.

“The learned ASJ had rightly observed that in view of the testimony of the child that she got married to the respondent in the month of December, 2014 and only thereafter did they have physical relationship, no offence under Section 6 read with Section 5(1) of POCSO Act was made out and the respondent was rightly acquitted”, the court said in its order dated August 17.