ORDER

1. This first bail application under section 439 of the Code of Criminal Procedure has been filed by the applicant for grant of bail in connection with Crime No.216/2020, registered at Police Station Parvati District Sehore, for the offence punishable under section 363, 366A, 376(2)(n) of IPC and section 5/6, 16/17 of POCSO Act. Applicant is in arrest since 15.1.2021.

2. Counsel for the applicant submits that in view of the statement of the prosecutrix recorded under section 164 of CrPC she has very categorically stated that she had gone with the applicant voluntarily, got married with him and he made physical relation with her consent. He further submits that as per the case of prosecution at the time of the incident, the age of the prosecutrix was 16 years and one month and as such considering the Exception 2 of section 375 of IPC sexual intercourse by a man with his own wife, not being under 15 years of age, is not rape. He submits that considering the said explanation and the case of the prosecution as prosecutrix herself has admitted that she got married with the applicant and was aged about 16 years one month, no case of rape is made out and the applicant is accordingly entitled to be released on bail.

3. Per contra, Shri Tiwari appearing on behalf of the State has opposed the bail application and submits that the consent of a girl below 18 years of age is no consent in the eye of law and if any physical relation is made to a girl who is below 18 years of age even with her consent amounts to a rape and as such application deserves to be dismissed.

4. Considering the rival contentions of the parties and perusal of case diary, I am of the opinion though the applicant is relying upon Exception 2 of section 375 of IPC submitting that the case of rape is not made out but that does not convince me for the reason that the marriageable age of a girl in our country is 18 years and any marriage solemnized below that age is considered to be void. It is also clear that a girl below 18 years is not capable of giving consent to have sex and legally she cannot marry and as such if she even otherwise admits that she got married with the applicant, the same cannot be a ground to release the applicant on bail by giving benefit of Exception 2 of section 375 of IPC, which reads as under :-

Exception 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

5. However, I am not convinced with submission made by counsel for the applicant because if the statement of prosecutrix is accepted, even otherwise, she can’t be considered a legally married wife, and relation between applicant and prosecutrix cannot be that of a husband or wife, simply because marriage of a girl below 18 years of age is void ab initio, and the husband, therefore, cannot get the benefit under Exception 2(2) of section 375 of IPC. It is also pertinent to mention that section 198(6) of Cr.P.C applies to a case of rape of wife below 18 years of age, clearly indicating that the act of the applicant, even otherwise amounts to rape.

6. I am also of the opinion that when minimum marriageable age is 18 years then fixing a lower age under Exception-2 of section 375 of IPC is totally irrational. The magic figure of 15 years is not based on any scientific evaluation, but is based on the mere fact that it has been existing for a long time. The age of 15 years in Exception 2 was fixed in the year 1940 when the minimum age for marriage was also 15 and the age of consent was 16 but at present the age for marriage has been fixed at 18 years and age of consent is also fixed at 18 years, keeping the age under Exception 2 at 15 years, cannot be said to be right, just and fair. Infact, it is arbitrary and oppressive to the girl child.

7. Further, in the present case, the applicant is also facing an offence under the POCSO Act which is a special enactment introduced with reference to Article 15(3) of Constitution. The pr