The Bombay High Court recently refused bail to a 26-year-old man who contended that he wed a minor girl and, therefore, should not be charged with raping her under the Protection of Children from Sexual Offences (POCSO) Act.
In dismissing his bail request, the court acknowledged the absence of a Nikahnama (a form of marriage certificate) to substantiate his claim of marrying the minor girl.
Justice GA Sanap’s bench heard the bail application of Ikrar Khan, against whom the case was registered at a local police station in Mumbai.
The victim, approximately 15 years old, accused the man of forcibly marrying her while he was already married to another woman and had three children from that marriage.
Previously, the Dindoshi Court had rejected his bail plea in 2021, citing a significant age gap between the accused and the victim, suggesting that she might have been coerced and influenced by him.
Advocate Khalid Gujjar, representing the accused, argued that there was a “love affair” between the accused and the girl.
Advocate Khalid Gujjar emphasized that the alleged sexual assault occurred with the victim’s consent, asserting that the accused alone should not be held responsible.
Advocate Khalid Gujjar guided the court through the girl’s statement, noting her admission that they were married.
He contended that the marriage of a Muslim girl who has reached the age of 15 is voidable, not void.
However, prosecutor HJ Dedhia and advocate Advait Sethna, representing the investigators and the minor, respectively, opposed the bail plea.
They argued that in a case involving a minor, a defense of ‘consensual sexual act’ cannot be entertained.
Sethna, opposing the bail plea, stressed the need to consider the legal mandate when deciding bail in a crime of aggravated sexual assault.
He pointed out that the accused did not plead in his application that there was a marriage between him and the girl before filing the report.
Sethna further argued that the victim’s solitary statement cannot be the foundation of the accused’s defense, insisting on independent proof through documentary evidence.
During the hearing, Justice Sanap noted that the accused did not assert in his application that they married according to Muslim law. If a marriage existed, the accused should have pleaded and established it prima facie by producing the Nikahnama. The petition lacked any mention of the marriage or Nikahnama.
The court held that the defense of the accused, claiming a consensual act due to a love affair, is legally untenable.
Justice Sanap rejected the bail plea, stating, “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.”
