New Delhi: The Delhi High Court has dismissed the appeal of the state against a trial court order acquitting a 22-year-old man accused of eloping with a minor girl and raping her after tying the knot at Kolkata last year.
A bench of justices Pradeep Nandrajog and Mukta Gupta upheld the lower court verdict saying that the girl, who was 15 years and four months old at the time of the alleged offence, had willingly accompanied him and had consensual sex with him after the marriage.
The bench also noted that the girl's mother was also of the view that her daughter will be happy with the accused.
Delhi Police, in its appeal against the acquittal, alleged the consent of the girl was "immaterial" as she was a minor and hence her husband has wrongly been absolved by the lower court of the offence of kidnapping and the penetrative sexual?assault under the Protection of Children from Sexual offences (POCSO) Act.
During the hearing, advocate Sumeet Verma, appearing for accused Suman Dass, referred to the penal provisions on rape and sexual assault and said the sexual intercourse by a man with his wife, who is not below the fifteen years of the age, is not rape.
"The legislature did not omit Exception 2 of section 375 (rape) of the IPC (that says that sexual intercourse by a man with his wife who is not below 15 years of age is not rape) while revisiting the entire penal laws on rape and sexual assault recently," Verma argued.
The court considered the plea and rejected the appeal of the state against the acquittal of Dass.
A charge sheet against the accused under the IPC and the POCSO?Act was filed alleging he lured away a minor and raped her several times after marrying her.
"In my opinion, it would neither serve the object of the present enactment nor the purpose of criminal laws to hold the accused guilty on the ground that he had sexual intercourse with the girl child below 18 years of age.
"As the prosecution has not disputed the factum of marriage, it would not be conducive to mental, psychological, physical health of the prosecutrix that her lawfully married husband be sent to the jail. If they are happy about it, why put obstacles on their path"? the trial judge had said.