Neutral Citation Number: 2023:DHC:3085-DB

W.P.(C) No.3811/2019

Page 1 of 9

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

W.P.(C) 3811/2019

INDEPENDENT THOUGHT

..... Petitioner

Through:

Mr. Vikram Srivastava and Ms. Shalu,

Advocates.

versus

UNION OF INDIA & ANR.

..... Respondents

Through:

Ms. Monika Arora, CGSC with Mr. Yash

Tyagi and Mr. Subhrodeep, Advocates for

UOI.

%

Date of Decision: 03^rdMay, 2023

CORAM:

HON’BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE SAURABH BANERJEE

J U D G M E N T

MANMOHAN, J: (ORAL)

1.

Present writ petition has been filed with the following prayers:-

“a) issue an appropriate writ, order or direction in the nature of certiorari or

Digitally Signed By:JASWANT

SINGH RAWAT

Signing Date:08.05.2023

13:13:53

Signature Not Verified

Neutral Citation Number: 2023:DHC:3085-DB

W.P.(C) No.3811/2019

Page 2 of 9

interest of justice;”

2.

At the outset, learned counsel for the petitioner states that the petitioner

would be satisfied if a declaration is granted to the effect that Section 19 read

with Section 21 of the Protection of Children from Sexual Offences Act, 2012

(‘POCSO Act’) override the restrictions imposed under Section 198(1) read with

Section 198(3) of the Code of Criminal Procedure, 1973 (‘Cr.P.C’) and if the

limitation to file the complaint by a minor victim is extended till she completes

two years of attaining majority.

3.

Learned counsel for the petitioner submits that Section 198(6) Cr.P.C is

an impediment to the protection of rights of minor girl children who are victims

of marital rape as it restricts the right of such minor victims to legal remedy. He

submits

that

while

substantive

law

provides

for

no

categorisation

or

differentiation of any sort, the procedural law continues to discriminate against a

minor girl victim of marital rape. The relevant portion of Section 198 of Cr.P.C.

relied upon by learned counsel for the petitioner is reproduced hereinbelow:-

Digitally Signed By:JASWANT

SINGH RAWAT

Signing Date:08.05.2023

13:13:53

Signature Not Verified

Neutral Citation Number: 2023:DHC:3085-DB

W.P.(C) No.3811/2019

Page 3 of 9

4.

Learned counsel for the petitioner states that the growing criminal trend to

marry young minor girls is reflected in the 2016 National Crime Records Bureau

(NCRB) data. He emphasises that the NCRB data is a reflection of only the

reported cases and the actual numbers must be much more. The 2016 NCRB

data as extracted in the present writ petition is reproduced hereinbelow:-

Digitally Signed By:JASWANT

SINGH RAWAT

Signing Date:08.05.2023

13:13:53

Signature Not Verified

Neutral Citation Number: 2023:DHC:3085-DB

W.P.(C) No.3811/2019

Page 4 of 9

5.

He states that from the aforesaid table, it is apparent that out of total

reported cases of 16,938, except one case of male child, all other cases involved

abduction of girls. According to him, what is really shocking is the fact that 139

children below the age of six years had also been kidnapped for the purpose of

marriage. He states that in the age group of 6-12 years, the number of girls

kidnapped were 666 and the number of such kidnappings in the age group of 12-

16 years was 6,461 and the number of girls kidnapped between the age group of

16-18 years was 9,671.

6.

He also points out that the census data of 2011 concerning birth reveals

that many girls below fifteen years of age are forced to give birth to children. He

emphasises that there were 29,714 girl children below the age of fifteen years

who gave birth to one child and there were 29,130 girl children aged less than

fifteen years who gave birth to two children.

7.

He submits that in all cases of child sexual abuse, including those

concerning child victims of marital rape, the provisions of POCSO Act being a

special law will override the Indian Penal Code (‘IPC’) by virtue of Section 42A

of the POCSO Act.

8.

He lastly submits that minor victims of marital rape may not be able to

file complaints or inform others about the crime during the time period they are

minors. He