No Rape If Muslim Man Makes Physical Relations With 15 Year Old Wife: Delhi High Court

The Delhi High Court has said physical relationship of Muslim man with about a 15-year-old child after marriage cannot be termed.

The court upheld acquittal of Mohd Kayum a Muslim man accused of sexual assault under Section 6 read with Section 5(1) of POCSO Act.

As per Muslim law, a girl over the age of 15 years, is competent to enter into a contract of marriage with the person of her choice and sex with such a girl is not considered an offence.

A bench of Justices Suresh Kumar Kait and Neena Bansal Krishna said, “We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent with the victim, cannot be termed as rape. The respondent has been rightly acquitted”.

The bench dismissed an appeal filed by the Delhi government against the judgment of acquittal passed on November 15, 2016.

The mother of the minor girl child lodged an FIR contending that in the month of October and November 2014 while her child was alone, Mohd Kayun, who was also the brother in law “jija” of the child came to her house four to five times and committed rape upon her. When she felt pain in in her abdomen, her mother took her to hospital, where her pregnancy was confirmed.

It was stated that in December, 2014, the minor victim, along with her mother, Kayum and his wife had gone to native place in Bihar to attend the marriage of their cousin sister. After attending the marriage she got married to accused Kayum. The mother was unaware of this marriage.

“The ASJ had rightly observed that in view of the testimony of the child that she got married to the respondent in the month of December, 2014 and only thereafter did they have physical relationship, no offence under Section 6 read with Section 5(1) of POCSO Act was made out and the respondent was rightly acquitted,” the bench said.

In her deposition, the child victim said accused Kayum was her real brother-in-law (husband of her elder sister). He along with his family used to reside one or two street away from her house. In the month of December, 2014 she along with her mother, respondent and his wife had gone to native place in Bihar to attend the marriage of their cousin sister.

After attending the marriage, she got married to accused Kayum. Thereafter, she along with her mother and respondent husband and sister returned to Delhi. She further deposed that the respondent thereafter made physical relation with her on various occasions. She became pregnant and this fact came to the knowledge of her mother. Her parents were not aware about her marriage with the respondent.

She further deposed that the respondent had never committed any wrong with her before their marriage.