The consummation of marriage with a girl under 15 even with her consent amounts to rape and the man is not protected by the personal law of his religion, the Delhi High Court has ruled.
“Consummation with wife below the age of 15 is an offence under Section 375 of the IPC. No exception can be made to the said legal mandate and the same has to be strictly and diligently enforced,” said a three-judge Bench led by Acting Chief Justice A.K. Sikri.
“Consent in such cases is completely immaterial for, consent at such a young age is difficult to conceive and accept. It makes no difference whether the girl is married or not. Personal law applicable to the parties is also immaterial,” said the Bench, which included Justices Sanjiv Khanna and V.K. Shali.
The court was answering a host of questions on conflicting provisions on the right age for a girl’s marriage and her consent for sex as per various statutory provisions, including those under the Indian Penal Code, the Prevention of Child Marriage Act and the Hindu Marriage Act.
The ruling came on a specific question “whether an FIR under Section 363 or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage on her own.”
The court, however, said that if a girl above 16 had given her consent for consummation of her marriage without any duress, the FIR registered against the man could be quashed in accordance with the law.
“If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent are without any force, coercion or undue influence, the statement could be accepted and the court will be within its power to quash the proceedings under Section 363 [kidnap] or 376 [rape] of the IPC.”