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The Kerala High Court reiterated the settled legal position that will of a minor girl for the sexual act is of no legal validity.Justice Narayana Pisharody, while dismissing the application for anticipatory bail filed under Section 438 of Cr.P.C, stated: “Even when there is consent of a girl below 18 years, the other partner in the sexual act is treated as a criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual.”
The girl was found missing from home and when she was found in the house of accused, he contended that she was living there with her will and no force was inflicted upon her. When the girl stated that he had sexual intercourse with her on promise of marriage, the offences punishable under Sections 363 and 376 of IPC and Sections 5(l) read with Section 6 of the POCSO were incorporated in the FIR.
The Court also noted that in Independent Thought v. Union of India, the Supreme Court has interpreted Exception 2 of Section 375 IPC to hold that sex with one’s own wife will amount to rape if she is minor. Hence, offence under Section 376 IPC was also found to be prima facie made out against the accused.
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