Marriage With Puberty-Attained Minor Not Void Under Muslim Law — Physical Relationship Post-Nikah Not Rape: Allahabad High Court Acquits Man Convicted Under Section 376 IPC

“Even if the girl is under 18, once she has attained puberty and enters into a valid Muslim marriage, the physical relationship arising out of that marriage cannot be treated as rape” — Allahabad High Court acquitted a man who had been sentenced to seven years of imprisonment for kidnapping and raping a minor girl. The Court found that the girl, though below 18, had attained puberty, had married the accused under Muslim personal law, and was not subjected to force, inducement, or unlawful restraint.

Justice Anil Kumar-X ruled that a Muslim girl above 15 years of age can validly contract marriage upon attaining puberty, and that marriage with such a girl, followed by cohabitation, would not attract the offence of rape under Section 376 IPC, especially for incidents that occurred before the 2017 Supreme Court judgment in Independent Thought v. Union of India.

Conviction Based on Alleged Abduction and Repeated Rape After Marriage

The appellant Islam @ Paltoo was convicted by the Sessions Court, Kanpur Dehat, for allegedly enticing a 16-year-old girl, taking her to Kalpi and then to Bhopal, performing Nikah with her, and committing rape over a period of weeks.

The FIR was lodged after the girl was allegedly found missing while going to relieve herself. The prosecution claimed that she was abducted, forcibly married, and raped repeatedly.

The trial court held the appellant guilty under Sections 363, 366, and 376 IPC and sentenced him to undergo rigorous imprisonment for seven years.

 “No Allurement, No Force — Girl Voluntarily Went With the Accused”

The High Court, after closely analyzing the evidence, held that the prosecution failed to prove any enticement or forcible taking of the girl by the accused.

Quoting the Supreme Court in S. Varadarajan v. State of Madras, the Court observed:

“There is a clear distinction between 'taking' and mere 'accompaniment'. If a minor leaves her home voluntarily and joins the accused, there must be evidence of active inducement or compulsion.”

The Court noted that the girl had traveled with the accused, performed Nikah willingly, lived with him in Bhopal, and never raised any alarm or approached anyone for help.

The judge remarked: “There is no material on record to suggest that the appellant made any deceitful act to lure the victim. Her own testimony suggests she went willingly.”

“Marriage With Minor Not Void Under Muslim Law — And Not Automatically Rape”

The central point in the judgment revolved around whether the Nikah was valid and whether sexual relations with the victim, who was admittedly under 18, could amount to rape.

Justice Anil Kumar-X emphasized that under Muslim personal law, a girl who has attained puberty (presumed at 15) is competent to contract marriage.

Referring to Mulla’s Principles of Mohammedan Law, the Court stated: “Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage.”

Further, the Court held: “Even if the marriage is not recognized under the Prohibition of Child Marriage Act, it is not void. At best, it is voidable at the instance of the minor. But so long as the marriage subsists and is not annulled, the sexual relationship arising out of it cannot be termed as rape.”

No Rape if Marriage Was Valid and the Girl Was Over 15: Independent Thought Applied Prospectively

The most important legal nuance in this case was the application of the Independent Thought v. Union of India judgment, where the Supreme Court read down Exception 2 to Section 375 IPC, and held that intercourse with a wife below 18 would be rape, even if married.

However, the Allahabad High Court noted that Independent Thought was delivered in 2017, while the incident in this case occurred in 2005.

The Court clarified: “The Supreme Court made it clear that its ruling would operate prospectively. Therefore, the law as it stood in 2005 governs the present case, and that law permitted sexual intercourse with a wife above 15 years.”

Thus, the Court concluded that the physical relationship between the appellant and the victim — occurring after a valid Nikah and when she was above 15 — was not punishable as rape under the IPC as it then stood.

Acquittal Ordered, Trial Court Conviction Set Aside

The High Court ultimately held that none of the charges under Sections 363 (kidnapping), 366 (abduction to compel marriage), or 376 (rape) stood established against the appellant.

Justice Anil Kumar-X held: “There is neither any inducement or enticement nor forceful act on part of the appellant. The victim had left her house voluntarily, married the appellant under Muslim law, and lived with him. The conviction is unsustainable in law.”

Accordingly, the conviction and sentence imposed by the trial court were set aside, and the appellant was acquitted of all charges.

The Court also directed that the appellant be released forthwith, and necessary compliance be made under Section 437-A CrPC.

Date of Decision: 19.09.2025