The Court said such cases would only be punishable after the 2017 Supreme Court judgment in Independent Thought vs Union of India.<\/p>\n\n\n\n
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\u2019s wife above 15 years of age was not rape. <\/p>\n\n\n\n
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<\/strong>\u2014that is, from the date of the 2017 judgment onward, not before.<\/p>\n\n\n\n Based on this, Justice Anil Kumar-X<\/strong> 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:<\/p>\n\n\n\n \u201cFrom 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.<\/strong><\/p>\n\n\n\n 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.\u201d<\/strong><\/p>\n<\/blockquote>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n When the matter reached the High Court, Justice Kumar found no clear evidence of enticement. The parents\u2019 statements did not suggest that the girl was forced or manipulated. <\/p>\n\n\n\n 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:<\/p>\n\n\n\n \u201cAct 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.\u201d<\/strong><\/p>\n<\/blockquote>\n\n\n\n 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Referring again to the Independent Thought judgment, the Court explained:<\/p>\n\n\n\n \u201cIn 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.\u201d<\/strong><\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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\u2019s conviction and cleared him of all charges.<\/p>\n\n\n\n Case Summary<\/strong><\/p>\n\n\n\n\n
\n
![\"Allahabad](\"https:\/\/www.shoneekapoor.com\/legal-news\/wp-content\/uploads\/2025\/10\/Allahabad-High-Court-1024x576.webp\" "\\"\\"")
Explanatory Table \u2013 Laws and Sections Mentioned<\/h4>\n\n\n\n
Law \/ Act<\/th> Section
\/ Article<\/th>Explanation
(Simplified)<\/th>Relevance
in Case<\/th><\/tr><\/thead>Indian Penal Code (IPC), 1860<\/strong><\/td> \u00a7 361 \u2013 Kidnapping from lawful guardianship<\/strong><\/td> Taking or enticing a minor (below 18 if female) without guardian\u2019s consent.<\/td> No proof of enticement; girl went willingly.<\/td><\/tr> <\/td> \u00a7 363 \u2013 Punishment for kidnapping<\/strong><\/td> Imprisonment up to 7 years for kidnapping a minor.<\/td> Offence not made out \u2013 no active taking proved.<\/td><\/tr> <\/td> \u00a7 366 \u2013 Kidnapping or abducting to compel marriage \/ intercourse<\/strong><\/td> Applies if woman is forced for marriage or intercourse.<\/td> Not applicable \u2013 Nikah by consent.<\/td><\/tr> <\/td> \u00a7 375 \u2013 Rape & Exception 2<\/strong><\/td> Earlier (Pre-2017): Sex with wife > 15 years = not rape. Post-2017: wife < 18 = rape.<\/td> 2005 act falls under old rule; no rape offence.<\/td><\/tr> <\/td> \u00a7 376 \u2013 Punishment for rape<\/strong><\/td> Sets punishment for rape offence.<\/td> Not applicable as per pre-2017 law.<\/td><\/tr> Code of Criminal Procedure (CrPC), 1973<\/strong><\/td> \u00a7 313<\/strong><\/td> Statement of accused to explain evidence against him.<\/td> Appellant stated he married the girl voluntarily.<\/td><\/tr> <\/td> \u00a7 437-A<\/strong><\/td> Bond to appear before higher court after acquittal.<\/td> Directed by HC post-acquittal.<\/td><\/tr> Prohibition of Child Marriage Act (PCMA), 2006<\/strong><\/td> \u00a7 2 (a)(b)(c)(f)<\/strong><\/td> Defines \u201cchild\u201d (< 18 girl), \u201cchild marriage\u201d, and \u201cminor\u201d.<\/td> Marriage held voidable but not void.<\/td><\/tr> <\/td> \u00a7 3<\/strong><\/td> Child marriage is voidable at minor\u2019s option.<\/td> Marriage could stand unless annulled.<\/td><\/tr> <\/td> \u00a7 12<\/strong><\/td> Marriage void if minor was enticed \/ forced \/ sold.<\/td> No force proved; not void.<\/td><\/tr> Muslim Personal Law (Shariat) Application Act, 1937<\/a><\/strong><\/td> \u00a7 2<\/strong><\/td> Muslim marriage governed by Shariat, not secular law.<\/td> Applied since both parties were Muslim.<\/td><\/tr> Principles of Mohammedan Law (by Mulla)<\/strong><\/td> Article 195<\/strong><\/td> Puberty presumed at 15; marriage valid after puberty.<\/td> Basis for valid Nikah at 16.<\/td><\/tr> POCSO Act, 2012<\/a><\/strong><\/td> \u00a7 42-A<\/strong><\/td> POCSO overrides other laws if inconsistent.<\/td> Mentioned in Independent Thought ruling.<\/td><\/tr> Supreme Court Judgment (2017)<\/a><\/strong><\/td> Independent Thought vs Union of India (AIR 2017 SC 4904)<\/em><\/td> Struck down Exception 2 to \u00a7 375 IPC for girls < 18; applies prospectively.<\/td> Key precedent \u2013 basis for HC acquittal.<\/td><\/tr> Case Precedent<\/strong><\/td> S. Varadarajan vs State of Madras (1965 AIR 942)<\/em><\/td> Clarified difference between \u201ctaking\u201d and \u201callowing to accompany.\u201d<\/td> Relied upon to hold no kidnapping.<\/td><\/tr> Case Precedent<\/strong><\/td> Thakorlal D. Vadgdama vs State of Gujarat (AIR 1973 SC 2313)<\/em><\/td> Explained meaning of \u201ctakes\u201d and \u201centices\u201d under \u00a7 361 IPC.<\/td> Explained meaning of \u201ctakes\u201d and \u201centices\u201d under \u00a7 361 IPC.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n \n