The Bombay High Court recently denied bail to a 26-year-old man who claimed that he married a minor girl and thus cannot be charged with raping her under the protection of children from sexual offences (POCSO) Act.The court, while refusing his bail plea, took into consideration the fact that he could not show a Nikahnama (a type of marriage certificate) to support his case of marrying the minor girl.A bench of Justice GA Sanap was hearing the bail application filed by one Ikrar Khan against whom the case was registered at a local police station in Mumbai.The victim was about 15 years old, and the allegation was that the accused forcefully married the minor while he was already married to someone else and had three children from the marriage.Earlier, the Dindoshi Court had also rejected his bail plea in 2021 on the ground that there was a huge age gap between the accused and the victim which suggested that she was pressurised and induced by him.
Advocate Khalid Gujjar, appearing for the accused, submitted that there was a "love affair" between the accused and the girl.He also pointed out that the alleged sexual assault was with the consent of the victim and therefore the accused alone could not be blamed for this situation.
Gujjar took the court through a statement of the girl and pointed out that the girl had admitted that they were married and thus the marriage of a Muslim girl having attained the age of 15 years is voidable and not void.However, prosecutor HJ Dedhia, representing the investigators, and advocate Advait Sethna from the legal aid, appearing for the minor, opposed the bail plea and submitted that in a case involving a minor, the defence of a 'consensual sexual act' cannot be entertained.Opposing the bail plea, Sethna further submitted that the mandate of law needs to be considered while deciding the bail application in such a crime of aggravated sexual assault.Sethna further submitted that even in the application the accused had not pleaded that there was a marriage between him and the girl before lodging the report.
He further submitted that the solitary statement made by the victim cannot be made the foundation of the defence of the accused. It is submitted that this fact will have to be independently proved by producing the documentary evidence and on that basis, the defence would have to be evaluated.During the hearing, Justice Sanap saw that the accused had not even pleaded in his application that the accused and victim got married as per Muslim law.If there was a marriage, then the accused was required to plead and prima facie establish the same by producing the Nikahnama. There is no whisper of the marriage as well as any Nikahnama in the petition.The court said that the defence of the accused of a consensual act on account of a love affair between them is not legally tenable.
"In my view, this statement of the victim that she was subjected to sexual assault against her consent and wish will have to be taken into consideration at this stage for the purpose of deciding the bail application," said Justice Sanap while rejecting the bail plea.
TAGS: Bombay High Court Denies Bail Man Marriage MinorCourt Rejects Bail Plea Marriage Certificate Minor Rape
