Safiya Malik

The High Court of Judicature at Allahabad, Single Bench of Justice Anil Kumar-X, held that a man cannot be convicted for having sexual intercourse with his minor wife aged over fifteen years if the act occurred before the Supreme Court’s 2017 judgment in Independent Thought v. Union of India. The Court noted that the apex court had read down Exception 2 to Section 375 IPC to raise the age of consent within marriage from fifteen to eighteen years but made the ruling prospective. Observing that the incident in the present case occurred in 2005 and the victim was over sixteen, the Court acquitted the appellant of kidnapping and rape charges, setting aside the conviction.

The case arose from a complaint lodged by the victim’s father, alleging that his minor daughter, aged about sixteen years, was taken away by the appellant when she had gone outside to relieve herself. An FIR was registered under Sections 363, 366, and 376 of the Indian Penal Code. The police recovered the girl on the same day, and her statement under Section 164 CrPC was recorded. After investigation, a charge sheet was filed, and the appellant faced trial before the Sessions Court.

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During trial, the prosecution examined seven witnesses, including the victim and her parents. The victim stated that she had accompanied the appellant voluntarily, travelled with him to Kalpi, and later to Bhopal, where they lived together for about a month after solemnising their Nikah. She admitted that they resided as husband and wife during this period. The medical examination revealed no external or internal injuries. The doctor opined that the victim was above sixteen years but not more than eighteen years of age.

The appellant, in his statement under Section 313 CrPC, asserted that he had married the victim with her consent according to Muslim customs. He produced a Nikahnama, a registered compromise deed, and age certificates to support his defence. The prosecution argued that the victim was a minor, and her consent was immaterial under Section 363 IPC. The State contended that taking or enticing a minor out of lawful guardianship constitutes kidnapping regardless of her willingness.

The trial court convicted the appellant under Sections 363, 366, and 376 IPC. On appeal, the High Court re-examined the evidence and legal position. Referring to the Supreme Court’s decision in Independent Thought v. Union of India (2017), it held that sexual intercourse with a wife above fifteen years of age could not constitute rape for acts committed before 2017, as the ruling operated prospectively. Accordingly, the appellant was acquitted of all charges.

Referring to Thakorlal D. Vadgdama v. State of Gujarat (AIR 1973 SC 2313), the Court recorded that “the word 'takes' does not necessarily connote taking by force and is not confined to use of force or fraud. The word 'entice' involves inducement or allurement by giving rise to hope or desire in the other.”

The judgment discussed the distinction between 'taking' and 'enticing,' explaining that “the two words 'takes' and 'entices' are intended to be read together so that each takes some of its content from the other. If the minor leaves her parental home uninfluenced by any promise, offer, or inducement from the accused, the latter cannot be said to have committed kidnapping.”

The Court relied on S. Varadarajan v. State of Madras (AIR 1965 SC 942), where it was held that “there is a distinction between 'taking' and allowing a minor to accompany a person. The two expressions are not synonymous… It would be sufficient if the prosecution establishes that the accused had at some earlier stage solicited or persuaded the minor to leave her guardian’s custody. In absence of such evidence, it cannot be inferred that the accused took the minor away merely because he later helped her in her design not to return.”

Applying this reasoning, the Court observed that in the present case, “witnesses, including parents and victim, have not divulged any fact from which an inference can be drawn that the victim was either enticed or taken by the appellant except for bald allegations. The victim’s testimony reflects she was a consenting party. Her statement that the appellant asked her to accompany him on a trip is not sufficient to establish the act of 'enticing' or 'taking'.”

It further observed that “no evidence was led to suggest that the appellant manipulated the victim to go with him or attempted to allure her.” Thus, the offence under Section 363 IPC was not made out. As the victim herself admitted that she performed Nikah with the appellant and thereafter lived with him as a married couple, the Court found that “the evidence pertaining to kidnapping or abducting the minor in order to compel her to marry or for illicit intercourse is missing.” Therefore, the offence under Section 366 IPC was also not established.

The Court analyzed Article 195 of Mulla’s Principles of Mohammedan Law, which presumes puberty at the age of fifteen years. It recorded that “under Muslim law, a minor who has attained puberty may validly contract marriage, and such marriage is not void though it may be voidable.”

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The Court then referred to Independent Thought v. Union of India (AIR 2017 SC 4904), noting that Exception 2 to Section 375 IPC, which previously excluded marital intercourse with a wife between 15 and 18 years from the definition of rape, was struck down prospectively. The Court recorded, “In this particular case, the alleged occurrence occurred in 2005. Therefore, the appellant cannot be held guilty of rape because the victim was above 16 years and physical relations between the two had taken place after solemnisation of marriage.”

Justice Anil Kumar-X held that “the present appeal is allowed and the appellant is acquitted of the charges.” The judgment of conviction and order of sentence dated 11 September 2007 were set aside.

“The appellant is on bail and his personal bond is cancelled and sureties are discharged.” However, the appellant was ordered to furnish a bail bond under Section 437-A Cr.P.C. to the satisfaction of the trial court within two months. “The trial court’s record be remitted back along with a copy of this judgment” and that a compliance report be submitted to the High Court.

Advocates Representing the Parties:
For the Appellant: Mayank Bhushan, Advocate
For the Respondent: Government Advocate

Neutral Citation:2025:AHC:168183
Case Title: XXX v. State of U.P.
Case Number: Criminal Appeal No. 6400 of 2007
Bench: Justice Anil Kumar X