HC denies bail to POCSO accused as he fails to produce evidence of Nikah

Bombay High Court denies bail to man accused of raping minor girlfriend, as he failed to produce evidence of marriage and victim's consistent statements of sexual assault.

MUMBAI: The Bombay high court (HC) recently denied bail to a man, arrested for allegedly raping his minor girlfriend, who he claimed to have married but failed to produce documentary evidence of his ‘nikah’ to the court. Additionally, while rejecting his bail plea, the court took into account the victim’s consistent statements about being subjected to penetrative sexual assault against her consent.

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“The victim in her statement has consistently stated that she was subjected to penetrative sexual assault against her consent. In my view, this statement of the victim that she was subjected to sexual assault against her consent and wish will have to be taken into consideration at this stage for the purpose of deciding the bail application,” said a single judge bench of justice GA Sanap.

The accused has been charged under sections 363 (kidnapping), 366 (procuration of a minor girl), 368 (wrongful confinement of a kidnapped person), 376 (rape), and 376(3) (rape of a child under 16) of the Indian Penal Code, 1860, as well as sections 4 (penetrative sexual assault) and 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offenses (POCSO) Act, 2012.

During the hearing, the advocate representing the accused claimed that he was in a consensual relationship with the minor girl and also said he was married to the victim. Even the victim acknowledged their marriage in her affidavit, claimed the advocate.

An additional public prosecutor, however, said that the girl was 15 years and four months old on the date of commission, the defence of a consensual act on account of a love affair cannot be entertained. In defence of marriage, he argued that the victim’s “solitary statement” could not prove their union. As he has not provided any documentary evidence to prove that they were married under Muslim law, such a defence cannot be entertained, he maintained. Considering the age of the victim and the lack of evidence proving the legality of their marriage, the court refused bail to the POCSO accused.