The Allahabad High Court ruled that sex with a wife above 16 years old before 2017 does not amount to rape. The court cancelled a 2007 conviction, referring to the Supreme Court’s 2017 Independent Thought decision.
UTTAR PRADESH: The Allahabad High Court has recently ruled that a man cannot be convicted of rape for having sexual relations with his wife who was above 16 years of age before 2017.
The Court said such cases would only be punishable after the 2017 Supreme Court judgment in Independent Thought vs Union of India.
In that landmark case, the Supreme Court changed Exception 2 to Section 375 of the Indian Penal Code (IPC). Earlier, this law said that sex with one’s wife above 15 years of age was not rape.
The Supreme Court modified it to mean that only a wife aged 18 years or above would fall under this exception. Importantly, the Apex Court had clarified that this change would apply only prospectively—that is, from the date of the 2017 judgment onward, not before.
Based on this, Justice Anil Kumar-X of the Allahabad High Court set aside a 2007 conviction order where a man was accused of raping his wife who was over 16 years old. The Court observed:
“From the foregoing observations as held by Hon’ble Supreme Court in Independent Thought (supra), it is very much apparent that exception 2 of Section 375 IPC has been struck down on the ground that said provision is inconsistent with the provisions of POCSO Act and is also violative of Article 14, 15 and 21. But it has also been held that the said judgment of Supreme Court will have prospective effect.
In this particular case, it is apparent that alleged occurrence had occurred way back in the year 2005. Therefore, appellant cannot be held guilty for commission of rape because victim at the time of occurrence was above 16 years and physical relations between the two had taken place after solemnisation of their marriage.”
The appellant had been convicted under Sections 363, 366, and 376 of the IPC. According to the FIR, the complainant alleged that the man had enticed away his 16-year-old daughter. After the girl was recovered, her medical examination and statement were recorded, and charges were filed.
The accused, however, stated that he and the girl were married on 29 August 2005 and produced their Nikahnama as proof. The Trial Court accepted that the couple had married and lived together happily for about a month but still convicted him since the girl was under 18.
When the matter reached the High Court, Justice Kumar found no clear evidence of enticement. The parents’ statements did not suggest that the girl was forced or manipulated.
The Court noted that the girl herself said she went with the man willingly when he invited her on a trip, and there was no sign of pressure or deceit. The judgment stated:
“Act of ‘enticing’ and ‘taking’ means that accused has played some active role by which victim was allured or influenced to accompany him. In the foregoing circumstances it can be safely concluded that prosecution has failed to lead any evidence to suggest that victim was either ‘enticed’ or ‘taken’ by appellant. Hence offence under Section 363 I.P.C against appellant is not made out.”
Since the girl went with him on her own and they had physical relations after marriage, the Court ruled that kidnapping or abduction charges under Section 366 IPC were also not applicable.
While discussing the issue of underage marriage and sexual relations, the Court examined the conflict between Mohammedan Law and the Prohibition of Child Marriage Act, 2006. Under Muslim personal law, the minimum marriageable age for a girl is 15, whereas the 2006 Act sets it at 18. The question before the Court was which law should prevail.
Referring again to the Independent Thought judgment, the Court explained:
“In the said judgement, provisions of IPC and POCSO Act were also discussed and it was held that that there is no difference between the definition of rape as laid down in IPC and POCSO, but definition of rape is somewhat more elaborate. Considering Section 42-A of POCSO Act, it was held that provisions of the POCSO Act will override the provisions of any other law (including the IPC) to the extent of any inconsistency.”
However, since the Independent Thought decision was declared to apply only prospectively, the High Court concluded that the accused could not be found guilty for the 2005 incident.
As the sexual relationship took place after marriage and before the 2017 judgment, it did not amount to rape under the law then in force. Accordingly, the High Court set aside the man’s conviction and cleared him of all charges.
Explanatory Table – Laws and Sections Mentioned
| Law / Act | Section / Article | Explanation (Simplified) | Relevance in Case |
|---|---|---|---|
| Indian Penal Code (IPC), 1860 | § 361 – Kidnapping from lawful guardianship | Taking or enticing a minor (below 18 if female) without guardian’s consent. | No proof of enticement; girl went willingly. |
| § 363 – Punishment for kidnapping | Imprisonment up to 7 years for kidnapping a minor. | Offence not made out – no active taking proved. | |
| § 366 – Kidnapping or abducting to compel marriage / intercourse | Applies if woman is forced for marriage or intercourse. | Not applicable – Nikah by consent. | |
| § 375 – Rape & Exception 2 | Earlier (Pre-2017): Sex with wife > 15 years = not rape. Post-2017: wife < 18 = rape. | 2005 act falls under old rule; no rape offence. | |
| § 376 – Punishment for rape | Sets punishment for rape offence. | Not applicable as per pre-2017 law. | |
| Code of Criminal Procedure (CrPC), 1973 | § 313 | Statement of accused to explain evidence against him. | Appellant stated he married the girl voluntarily. |
| § 437-A | Bond to appear before higher court after acquittal. | Directed by HC post-acquittal. | |
| Prohibition of Child Marriage Act (PCMA), 2006 | § 2 (a)(b)(c)(f) | Defines “child” (< 18 girl), “child marriage”, and “minor”. | Marriage held voidable but not void. |
| § 3 | Child marriage is voidable at minor’s option. | Marriage could stand unless annulled. | |
| § 12 | Marriage void if minor was enticed / forced / sold. | No force proved; not void. | |
| Muslim Personal Law (Shariat) Application Act, 1937 | § 2 | Muslim marriage governed by Shariat, not secular law. | Applied since both parties were Muslim. |
| Principles of Mohammedan Law (by Mulla) | Article 195 | Puberty presumed at 15; marriage valid after puberty. | Basis for valid Nikah at 16. |
| POCSO Act, 2012 | § 42-A | POCSO overrides other laws if inconsistent. | Mentioned in Independent Thought ruling. |
| Supreme Court Judgment (2017) | Independent Thought vs Union of India (AIR 2017 SC 4904) | Struck down Exception 2 to § 375 IPC for girls < 18; applies prospectively. | Key precedent – basis for HC acquittal. |
| Case Precedent | S. Varadarajan vs State of Madras (1965 AIR 942) | Clarified difference between “taking” and “allowing to accompany.” | Relied upon to hold no kidnapping. |
| Case Precedent | Thakorlal D. Vadgdama vs State of Gujarat (AIR 1973 SC 2313) | Explained meaning of “takes” and “entices” under § 361 IPC. | Explained meaning of “takes” and “entices” under § 361 IPC. |
Case Summary
- Case Title: Islam @ Paltoo vs State of Uttar Pradesh
- Court: High Court of Judicature at Allahabad
- Case No.: Criminal Appeal No. 6400 of 2007
- Trial Court Case: Sessions Trial No. 51 of 2006 (State vs Islam @ Paltoo)
- Crime No.: Case Crime No. 307 of 2005
- Bench / Judge: Hon’ble Justice Anil Kumar-X
- Court No.: 90
- Reserved On: 20 August 2025
- Delivered On: 19 September 2025
- Appellant: Islam @ Paltoo
- Respondent: State of Uttar Pradesh
- Counsel for Appellant: Advocate Mayank Bhushan
- Counsel for Respondent / State: Government Advocate
- Trial Court Order (2007): Convicted under Sections 363, 366 & 376 IPC → 7 years’ imprisonment + ₹4,000 fine
- High Court Outcome (2025): Conviction set aside • Appellant acquitted of all charges
- Reasoning: 2017 SC ruling (Independent Thought vs Union of India) applies only prospectively; the incident occurred in 2005 when sex with wife above 16 was not rape
- Compliance Direction: Appellant to furnish bond u/s 437-A CrPC within two months before concerned Court
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