Consummation of marriage with girl below 15 is rape

The Delhi high court has said consummation of marriage with a girl below the age of 15 amounts to raping her despite her consent and the man is not protected by even the personal law of his religion.

The Delhi high court has said consummation of marriage with a girl below the age of 15 amounts to raping her despite her consent and the man is not protected by even the personal law of his religion.

HT Image

The court said that FIR for rape and kidnap against the person who eloped with a girl below the age of 15 also cannot be quashed even if the girl says she was a willing party.

The ruling is set to act as a deterrent against incidents where minor girls are abducted, raped and the accused goes scot-free after marrying the victim.

"Consummation with the wife below age of 15 years is an offence under section 375 of IPC (rape)... No exception can be made to the said constitutional mandate and the same has to be strictly and diligently enforced," a three-judge bench headed by acting chief justice AK Sikri said on Friday.

"Consent at such young age is difficult to conceive and accept. It makes no difference whether the girl is married or not. Personal law applicable to parties is also immaterial," said the bench, while dealing with the question if FIR for kidnap and rape can be quashed if the girl agreed to marry the accused in two such cases.

The court, however, said in cases where a girl is more than 16 years old and tells the court she went on her own, the court can accept the statement and the FIR can be quashed.

"But here too, the court has to be cautious. The girl's maturity as well as understanding, and the social background and age of the girl and boy have to be considered," the court said.

Remove conflicts

The court also said that the conflict between the Indian Penal Code and Prohibition of Child Marriage Act (PCMA) regarding forced marriage, which is misused by rapists, needed to be 're-looked' at.

As per PCMA, any child marriage involving kidnapping and other forms of force is invalid from the beginning.

But subsections of 375 (rape) and 376 (punishment for rape) recommend leniency to the accused who marries the victim and reduce the punishment to two years against a maximum of 10 years.

Appearing for the centre, additional solicitor general AS Chandhiok had told the court that a draft bill pending before the Parliament promises to keep 18 years as a uniform age for marriage and consent, abolishing all exceptions.