Supreme Court's "Independent Thought" Judgment Applies Prospectively: Allahabad High Court Acquits Man Accused Of Raping Wife In 2005

The Court was hearing a criminal appeal filed by the appellant challenging his conviction and sentence for kidnapping and rape under Sections 363, 366 and 376 IPC.

A Bench comprising Justice Anil Kumar-X, while setting aside the conviction, held that “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”. The Bench, however, clarified that “the said judgment of Supreme Court will have prospective effect.”

Advocate Mayank Bhushan appeared on behalf of the appellant.

Background

As per the prosecution, the father of the victim had alleged that the appellant, a Muslim man, had enticed away his daughter, a Muslim girl aged 16, and had eventually raped her. A case was registered under Sections 363, 366 and 376 IPC, and the appellant was convicted and sentenced by the Sessions Court.

The appellant denied the allegations, stating that he had married the victim of her own free will and produced a Nikahnama and other supporting documents. The victim, during her testimony, admitted that she had accompanied the appellant voluntarily and had lived with him as his wife.

Court’s Observation

The Allahabad High Court examined the evidence and held that the essential ingredients of “taking” or “enticing” for the offence of kidnapping under Section 363 IPC were not established, noting that the victim had accompanied the appellant voluntarily, and no evidence of inducement or compulsion was proved.

The Court further considered the age of the victim and noted from the medical evidence that she was above 16 years but below 18 years when the incident occurred. Referring to Mulla’s Principles of Mohammedan Law, it noted that a Muslim girl who had attained puberty (presumed at 15 years) was competent to marry at the time when the incident was reported.

In examining the charge of rape, the Court relied on the decision in Independent Thought v. Union of India, which held that Exception 2 to Section 375 IPC, excluding marital intercourse with a wife aged between 15 and 18 years from the definition of rape, is inconsistent with the POCSO Act and violative of Articles 14, 15 and 21 of the Constitution.

However, the Supreme Court, in its judgment, had directed that it would have only a prospective operation. Justice Anil Kumar-X accordingly concluded that “in this particular case, it is apparent that alleged occurrence had occurred way back in the year 2005”. Therefore, the Court held that the “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.”

Conclusion

Accordingly, the Court allowed the appeal, set aside the conviction and sentence imposed by the trial court, and acquitted the appellant of all charges under Sections 363, 366 and 376 IPC.

Cause Title: Islam @ Paltoo v. State of Uttar Pradesh (Neutral Citation: 2025:AHC:168183)

Appearances

Appellant: Advocate Mayank Bhushan

Respondents: Government Advocate

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