The Nagpur bench of the Bombay High Court recently held that sexual intercourse between a man and his wife who is under the age of 18 would be classified as rape even if it is consensual, Bar and Bench reported on Friday.

Justice GA Sanap made the observation in an order passed on November 12. The order upheld the 10-year imprisonment sentence granted to a man by a trial court.

“In view of the law laid down by the apex court, intercourse by the appellant with the victim being his wife would not constitute rape or penetrative sexual assault, cannot be accepted,” said the court.

It added: “It needs to be stated that the sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The defence of consensual sex with the wife is not available when the age of the wife or the girl, who is alleged to be the wife, is below 18 years of age.”

Exception 2 to Section 375 of the Indian Penal Code states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below 15 years of age.

The court was hearing a criminal appeal filed by the man against a 2021 order of a trial court in Wardha district that convicted him on charges of rape and under the provisions of the Protection of Children from Sexual Offences Act, Live Law reported.

The man was arrested in 2019 based on a complaint filed by a minor girl who was 31 weeks pregnant at the time, according to Live Law. The girl claimed that she had been in a romantic relationship with the man for around three to four years, Bar and Bench reported.

According to the girl, the man pressured her into having sexual intercourse with him despite her initial reluctance. Eventually, he coerced her into engaging in sexual activity by promising to marry her, she added.

When she became pregnant, the man arranged a makeshift marriage ceremony in a rented room. The victim alleged that the ceremony was a farce and lacked legal validity.

She further claimed that the accused continued to manipulate her and insisted that she have an abortion.

Subsequently, the minor filed a complaint with the police.

When she was cross-examined in the trial court, the girl said that she had filed a complaint with the Child Welfare Committee section of the Wardha Police, Bar and Bench reported. She had also told the committee that the man was her husband.

Based on this admission, the counsel for the accused said that the sexual act was consensual as it involved the girl and her husband.

“In my view, this submission cannot be accepted for more than one reason,” the Nagpur bench said in its order on November 12. “In this case, the prosecution has proved that the victim on the date of commission of the crime was below 18 years of age.”

It added: “Even if it is assumed for the sake of argument that there was so-called marriage between them, in view of the allegations made by the victim that it was sexual intercourse against her consent, it would constitute rape.”

Sanap said that the trial court had not committed any mistake in its verdict. “I do not see any reason to discard and disbelieve the evidence on record,” he said in the order. “As a result of this, I do not see any substance in the appeal.”