Why Did Bombay HC Grant Bail To Man Accused Of Raping A Minor?

In a distressing judgement, the Bombay High Court granted bail to a 26-year-old man accused of raping a 13-year-old girl saying that the alleged sexual relationship was made out of love, not lust. It also added that since the girl was a minor, her consent was not relevant. Read more on this shocking judgement that raises many questions on consent and relationships. 

As per the reports, the man, Nitin Dhaberao was arrested after the girl's father complained against him. He was charged under Sections 363, 376, 376(2)(n), 376(3) along with Section 34 of the Indian Penal Code and Sections 4,6 and 17 of the Protection of Children from Sexual Offences Act (POCSO).

However, the Bombay High Court nullified the charges and granted bail to him. Justice Urmila Joshi-Phalke of the Nagpur bench said, "It seems that the alleged incident of a sexual relationship is out of the attraction between the two young people, and it is not the case that the applicant has subjected the victim to a sexual assault out of lust." 

The father had earlier alleged that his daughter went out of the house on August 23, 2020, on the pretext of bringing books but didn't return. So he filed a missing complaint and the police traced the girl. On being found, the girl confessed that she was in a romantic relationship with Nitin. She also said that the accused had promised to marry her. She took ornaments and money from her house when she left and was living with Nitin at various places. 

The court, while giving its judgement, pointed out that the girl had voluntarily stepped out of the house. It also said that the accused was also "of a tender age of 26 years and out of love affair, they come together”.

Urmila Joshi-Phalke further added that, "As far as merit is concerned, admittedly, the victim is 13 years of age, and her consent is not relevant. She also joined the company of the applicant (accused) and admitted her love relationship with the applicant in her statement.”

Moreover, the judge concluded by saying that in her statement the girl had not said that she was coerced by any means. The judge added, "From her (minor’s) statement, reveals that she stayed along with the present applicant at various places and did not make any grievance as she was taken by the applicant using some force. Thus, it is apparent that, out of the love affair, she joined the company of the applicant."

What do we think about the case?

We cannot ignore that the girl is a minor. The legal age to be sexually active in our country is 18 years. In fact, the promises of marriage also stand void because a girl cannot marry until she is 18. It can be easy for any man as grown up as the accused to trick a minor girl by promising romance and marriage and getting her into bed. Didn't the accused know all this? And if he didn't, shouldn't the court call him out for his ignorance? 

Moreover, it is highly controversial that the court dismissed the girl's right to have consent. Consent for sexual relationships is important irrespective of gender or age. You cannot plant a peck on a child's checks without asking for their consent. Then how can a 13-year-old girl's consent not matter in a sexual relationship?   

Views expressed by the author are their own