Can't Permit Minor To Cohabit With Adult Husband, Age Of Consent Is 18 Under BNS: Allahabad High Court

The Allahabad High Court while directing for confinement of a minor wife in a Bal Grih has observed that she cannot be legally permitted to stay with the major husband, as the age of consent is 18 as per the new Bharatiya Nayaya Sanhita, 2023.

The Court was considering a Writ Petition filed with a prayer that the detenue- wife be summoned from the custody of the Rajkeeya Bal Grih (Balika) and set at liberty.

The Division Bench of Justice JJ Munir and Justice Sanjeev Kumar observed,".....the Penal Code has been repealed and substituted by the B. N. S......12. The statutory context has much changed since the last mentioned case was decided. Under the B.N.S., which is the successor Statute to the Indian Penal Code that has come into force with effect from 01.07.2024, the age of consent under Section 63 (vi) is stipulated to be 18 years."

The Petitioner was represented by Advocate Shakti Shanker Tiwari while the Respondent was represented by Government Advocate.

The Petitioner, who claimed be a minor was allegedly married and gave birth to a child. In the affidavit filed on behalf of the mother-in-law it was stated that she married out of her free will, however, the father of the minor child reported it as a crime and the same was registered under Section 137 (2) of the Bharatiya Nyaya Sanhita, 2023.

It was stated that the parties married in 2025 and according to 'A's High School Marksheet, her date of birth is October 05, 2008 and therefore, on the date of her marriage, the prosecutrix was three months shy of 17 years. The Husband was taken into custody and as the prosecutrix refused to go along with her parents citing peril to her life, the Child Welfare Committee directed they be lodged in Bal Grih.

The Counsel for the Petitioner had placed reliance on K.P. Thimmappa Gowda vs. State of Karnataka (2011) which the Court declined to allow, stating that the law regarding the age of consent has undergone a sea change since K.P. Thimmappa Gowda was decided.

"The age of consent under the Clause sixthly of Section 375 IPC, when K.P. Thimmappa Gowda was decided, was 16 years. Clause sixthly of Section 375 IPC was amended by the Criminal Law (Amendment) Act, 2013, which came into force on 02.04.2013 to provide that any of the enumerated sexual activities in Clauses (a) to (d) of Section 375 IPC would constitute rape under clause sixthly of Section 375 with or without consent of the prosecutrix when she is under the age of 18 years. The submission of the learned Counsel for the petitioner, therefore, based on the authority of the K.P. Thimmappa Gowda is away from the statutory context and of no assistance to him. The other submissions advanced by the learned Counsel for the petitioner that the parties being married, sexual intercourse between the petitioner and 'A', 'A' being his wife and not below the age of 15 years is not rape, is again misconceived. The said submission is based upon the provisions of Exception 2 to Section 375 IPC as that Statue stood before the provisions of Exception 2 were read down by the Supreme Court in Independent Thought vs. Union of India and another (2017) 10 SCC 800 and the age of consent was to be read as 18 instead of 16", the Court observed.

It thus found the submissions to be ill-founded and directed for custody of the minor into the Bal Grih.

The Petition was accordingly dismissed.

Cause Title: Neha and another v. State of U.P. and others

Appearances:

Petitioner- Advocate Shakti Shanker Tiwari, Advocate Subhash Chandra Tiwari 

Respondent- Government Advocate 

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