PESHAWAR: The Peshawar High Court has rejected bail plea of a suspect arrested on charges of abducting and sexually assaulting his minor wife whose rukhsati (bridal send-off) had not taken place.

A single-member bench consisting of Justice Dr Khursheed Iqbal while rejecting bail petition of the accused named Rashid Ali, a resident of Shangla district, observed that a close and critical reading of section 375 of the Pakistan Penal Code, defining the offence of rape, made no exception to marriage.

The judge observed that the first and second description enunciated in the definition -- rape against will and consent of a victim -- apply here.

“If the allegation of rape in marriage is ignored, yet another question is the victim’s juvenility. The victim, being just above 15 years of age, is still covered in the definition of ‘child,’ being under 18 years of age,” the bench observed.

Under relevant PPC provision, marriage can’t be an exception, court rules

The petitioner’s counsel argued that the petitioner was husband of the victim and there was no legal hurdle for him to take his wife with himself and to engage her in sexual activity.

The FIR of the occurrence was registered at Karora police station in Shangla on June 10, 2023, on complaint of the victim’s mother.

The complainant had stated that her husband had died around 10 years ago and around two years ago she had arranged nikah of her daughter (the victim) with the accused but the rukhsati had yet to take place.

She claimed that she had put a demand to the petitioner’s family to arrange separate accommodation for her daughter before the rukhsati, but they were reluctant to do so.

She alleged that on the eventful night they were present at home when the accused (petitioner) along with his father and four other relatives barged into their house and forcibly took away the victim while the complainant, her son and another daughter were tied and also beaten.

Initially, the FIR was registered for abducting the girl (victim), but subsequently when she was recovered by the police different provisions of PPC and Khyber Pakhtunkhwa Child Protection and Welfare Act, dealing with sexual assaults and sexual abuse, were also included in it.

Following recovery of the girl her statement was recorded by a judicial magistrate, wherein she charged the petitioner for repeatedly assaulting her during captivity.

She admitted that during her childhood she was given in nikkah to the petitioner but she didn’t want to go with him.

Her medical examination also confirmed that she was subjected to sexual assault.

The bench observed that three points gleaned from the record: firstly, she was abducted; secondly, she was subjected to sexual intercourse; and, thirdly, she is a minor girl.

The bench also referred to an almost identical case wherein the Islamabad High Court had drawn several conclusions after detailed discussion.

“Section 375 (rape) and 377A (sexual abuse) of PPC read together with Article 9 of the Constitution, Islamabad Capital territory Child Protection Act, 2018, and provisions of the United Nations Convention on the Rights of the Child unequivocally provide that no one can engage in sexual conduct in any form with a child and neither can any person invite or entice a child to engage in sexual conduct in any form, and any invitation or enticement provided to a child to engage in sexual conduct, even under the cloak of marriage, would fall within the definition of sexual abuse in terms of section 377A,” the bench quoted from the conclusions drawn by Islamabad High Court (IHC) in its judgment.

The bench further quoted: “Section 375 (rape) and section 377A (sexual abuse) of the PPC do not provide for any exception or exclusions to conduct that otherwise qualifies as rape or sexual abuse as defined therein, and the said section would be attracted even where the offence is made out against a person who seeks to defend himself on the basis that such conduct was pursuant to a marriage contract executed by a child under the age of 18 years or his/ her parent or guardian on his/her behalf.”

The bench also observed that section 53 of the KP Child Protection and Welfare Act had been applied which provided that the offence of sexual abuse was punishable from seven years up to 14 years imprisonment with minimum fine of one million rupees.

Published in Dawn, July 17th, 2023