The judgment establishes the need to protect the rights of the girl child and prevent child marriages, emphasizing the conflict between IPC and POCSO Act and the impact of child marriages on the girl child's dignity and bodily integrity.

JUDGMENT

1. Applicant is apprehending his arrest in connection with Crime No.1 of 2022 registered with Shrigonda Police Station, District-Ahmednagar for the offence punishable under Ss. 376 of the Indian Penal Code read with Ss. 9, 10, 11 of Prohibition of Child Marriage Act and Ss. 3 and 4 of the Protection of Children from the Sexual Offences Act (for short "POCSO Act").

2. Heard learned Advocate Mr. Karpe for the applicant, learned APP Mr. Phule for the respondent No.1 - State and learned Advocate Mr. Gangakhedkar holding for learned Advocate Mr. Munde for respondent No.2 - informant.

3. It has been vehemently submitted on behalf of the applicant that the perusal of the First Information Report (for short "FIR") would show that it has been filed due to constrains. The relationship in between the informant and the present applicant is that of wife and husband. At the time of marriage, there was no resistance by the informant nor she says that she had personally disclosed her age. In fact, what impression was given to the applicant by her mother and other relatives was that she was major. The marriage was performed on 24 th December 2020. She was properly cohabited with the husband and she does not say that she was ill-treated in any manner. Thereafter, she became pregnant and she was getting all the initial treatments at Nawale Hospital, Shrigonda. The expenses were born by the applicant. She suffered cough and cold as well as fever on 22/12/2021 and therefore, again she was taken to Nawale Hospital, where after checking it was diagnosed that she was Covid Positive at that time. She was then sent to Civil Hospital, Ahmednagar. She was pregnant of nine months and since there was no facility in the Civil Hospital, Ahmednagar, she was referred to Sasoon Hospital, Pune. She was admitted by her mother and father-in-law to the hospital. After treatment, she came out of the Covid-19 and she delivered a baby boy at 12.00 midnight on 23/12/2021. When it was told to the hospital authorities that she was 17 years of age, at that time then the fact was informed to the Police and then it is stated that though the mother, paternal uncle, father of the informant were having knowledge that she is minor, yet her marriage was performed with the applicant. Learned Advocate for the applicant submits that even in her FIR she has not stated that she has any complaint to make against the husband. It cannot be said that sexual intercourse between them was against the wish of the girl. In fact there are good relations between them and being wife she had extended no objection for grant of anticipatory bail when the matter was before the learned Special Judge, Shrigonda. The custodial interrogation of the applicant is absolutely not necessary. Applicant is ready to abide by the terms of the bail.

4. Learned Advocate for the applicant has relied on the decision in Independent Thought vs. Union of India, AIR 2018 SC (Criminal)) 229, wherein the Hon'ble Supreme Court held that, the exception 2 to Sec. 375 of the Indian Penal Code insofar as it relates to girl child below 18 years is liable to be struck down and it should be read as follows:-

"Sexual intercourse or sexual acts by man with his own wife, wife not being 18 years, is not rape."

5. Learned counsel for the applicant submits that though this decision is there, yet when the custodial interrogation is not required, the applicant be released on anticipatory bail.

6. Learned APP has submitted that the applicant is not denying the fact that his wife i.e. informant is aged 17 years when the FIR was given and prior to that , i.e. for about 1 and 1/2 year she was married to the applicant. The consent of the minor is no consent at all and if the loopholes or technical defences are allowed to be raised, then it would help those persons who commit the offence and still want the protection of the law. Learned APP has pointed out that reports are appearing in the newspapers that in the Covid situation there i