KATHMANDU, AUGUST 5
In a landmark judgment, the Supreme Court has ruled that sexual intercourse with an underage girl cannot constitute rape if a boy and a girl (underage) wed and have sexual intercourse deeming it a biological need between husband and wife.
A division bench of Justices Anil Kumar Sinha and Kumar Chudal passed the judgement on November 14 in response to an appeal filed by Santosh Kumar Yadav, a permanent resident of Saptari district, against the government. The apex court released the full text only recently.
The SC ruled that if a boy marries a girl below the age of 20, the boy and the girl live as husband and wife, then the relationship should not constitute rape; it should only be a case of child marriage.
The SC overturned the Biratnagar High Court verdict and imposed only six-month jail term and a fine of Rs 10,000 on Yadav, holding him guilty of child marriage.
According to the case file, the girl, a resident of Udayapur district, who was only 15 years and six months old had eloped with Yadav.
But the mother of the girl who is from a different caste, filed an FIR in Udayapur district accusing Yadav of rape, hostage taking and kidnapping.
The girl and boy later filed a case at Siraha District Court and reached conciliation, which proved their relationship as wife and husband. The boy had deposed before the court that the girl was happily married with him, but her mother lodged FIR as she opposed their marriage because of caste difference.
The SC ruled that although the girl claimed before Siraha District Court that she was 20 years old, her document proved that she was 15 years and six months old at the time of the incident. The court held that the defendant thus married an underage girl.
The SC quoted S Veradrajan versus State of Madras case to acquit Yadav of hostage taking and kidnapping charges.
The Indian supreme court ruled in the S Veradrajan versus State of Madras case that a criminal liability could not be placed on an underage girl who just eloped with a boy.
The SC observed that a study conducted by Kaya Van Roost in the US stated that underage boy and girl could have sexual intercourse or child marriage could happen. Sexual intercourse between underage individuals is defined as Romeo-Juliet law which allows for close-in-age- exemption in some states.
The couple have one daughter and they are living as husband and wife.
The court differentiated between statutory rape and child marriage observing that mens rea is absent in child marriage. In child marriage the couple engages in sexual intercourse not because of guilty mind but because of societal belief, and the feeling of biological need. The court observed that if sexual intercourse with underage person was defined as statutory rape, then the provisions governing child marriage issues would be rendered ineffective.
As of now, marriage with underage girl was always treated as rape and the parents of such girls who were not happy with their daughter's decision often lodged FIR accusing the boy of rape, hostage taking and kidnapping. Although marriage laws require both bride and grooms to be 20 years of age at the time of marriage, lovebirds in rural areas elope and marry before they reach 20 years of age.
Muluki Criminal Code stipulates that if anybody marries before 20 years of age, then they shall be liable to punishment of jail term not exceeding three years and a fine not exceeding Rs 30,000. Rape carries a minimum jail sentence of seven years.
The mother of the 15-year-old girl had stated in the FIR that Santosh Kumar Yadav met and enticed his daughter and took her out of Udayapur district with another man Kalim Miya on 22 February 2016, a day after he raped her and took her hostage in Udayapur district.
The girl's mother accused Yadav of rape, hostage taking and kidnapping. The girl had deposed before Udayapur District Court that she had love affair with Santosh Kumar Yadav for the last one year and they eloped and got married in Siraha District Court. The girl's mother also deposed before the court that she lodged the FIR as she was angry with the boy at the time, as he had made her daughter elope with him.
Udayapur District Court had acquitted him.
The Okhaldhunga bench of High Court, Biratnagar had imposed 11 years jail term on Yadav holding him guilty of hostage taking, kidnapping and rape. He was handed down six years jail term for rape (in accordance with Muluki Ain).
The government attorney's office had stated in its appeal against the district court judgement that although the defendant succeeded in getting a marriage certificate from Siraha District Court by falsifying the girl's date of birth, it was merely a ploy to create false evidence to avoid punishment under rape law. Both the girl and the boy had reached conciliation in Siraha District Court. The SC said that the conciliation reached between the boy and girl in Siraha district proved that they were living as husband and wife.
A version of this article appears in the print on August 6, 2023, of The Himalayan Times.
