The High Court of Judicature at Allahabad has acquitted a man convicted of kidnapping and raping a minor, holding that the prosecution failed to establish that the girl was “taken or enticed” away from her lawful guardianship. The Court, presided over by Justice Anil Kumar-X, further ruled that the charge of rape was not sustainable as the sexual relationship occurred after their Nikah, at a time when the victim was over 16, and the Supreme Court’s judgment striking down the marital rape exception has only prospective effect.
The judgment, delivered on September 19, 2025, sets aside the 2007 order of the Additional Sessions Judge, Kanpur Dehat, which had sentenced the appellant, Islam @ Paltoo, to rigorous imprisonment under Sections 363, 366, and 376 of the Indian Penal Code (IPC).
Background of the Case
The case originated from a written complaint filed on September 25, 2005, by Fazal Ahmad, who alleged that his daughter, aged approximately 16, was enticed away by the appellant and two others while she had gone out to answer the call of nature. An FIR was registered under Sections 363, 366, and 376 of the IPC.
The victim was recovered a month later and, in her statement under Section 164 of the Criminal Procedure Code (Cr.P.C.), alleged that the appellant had taken her to Kalpi and then to Bhopal, where he rented a room and repeatedly raped her for a month. When his money ran out, he allegedly abandoned her.
The trial court, after examining seven prosecution witnesses, convicted the appellant. It found that the victim was a minor at the time of the incident, and therefore, her consent was immaterial.
Arguments of the Parties
The appellant’s counsel argued that the victim had left with the appellant on her own free will. The counsel pointed to the victim’s cross-examination, where she admitted to having performed Nikah with the appellant in Kalpi and living with him as a “happily married couple” in a rented room in Bhopal for a month. It was contended that it was impossible for an abducted minor to travel across states and live in a residential building without her situation being noticed. The defense produced a Nikahnama and argued that the ossification test suggested the victim could have been an adult at the time of the marriage.
The learned Additional Government Advocate (AGA), representing the State, countered that the consent of a minor is immaterial for the offence of kidnapping under Section 363 IPC. The AGA argued that if a person persuades a minor in a manner that creates a willingness to be taken out of lawful guardianship, the offence is complete, and the accused cannot take the defense that the minor accompanied him of her own free will.
Court’s Analysis and Findings
The High Court meticulously analyzed the essential ingredients of the offences of kidnapping and rape.
On Kidnapping (Sections 363 & 366 IPC):
Justice Anil Kumar-X framed two primary questions: first, whether the victim was “enticed or taken away” by the appellant, and second, whether she was a minor.
The Court referred to the Supreme Court’s decision in Thakorlal D. Vadgdama v. The State of Gujarat, which distinguished between the terms “takes” and “entices.” The judgment noted, “The word ‘takes’ does not necessarily connote taking by force… The word ‘entice’ seems to involve the idea of inducement or allurement.”
The High Court heavily relied on the precedent set in S. Varadarajan vs State Of Madras, where the Supreme Court held there is a distinction between “taking” and allowing a minor to accompany a person. The apex court had observed that for the offence of “taking” to be established, “something more has to be shown… that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.”
Applying this principle, the High Court found that the prosecution witnesses, including the victim and her parents, made only “bald allegations of ‘enticing’ and ‘taking'” without divulging any specific facts. The Court observed, “The circumstances disclosed by victim also manifest that their elopement was premeditated… Statement of victim that she was asked by the appellant to accompany him on a trip alone is not sufficient to establish the act of ‘enticing’ and ‘taking’.”
Concluding this point, the Court held that the prosecution had failed to prove that the victim was either enticed or taken by the appellant, and therefore, the offences under Section 363 and 366 IPC were not made out.
On Rape (Section 376 IPC):
The Court then examined the charge of rape. It noted that the medical evidence indicated the victim’s age was “above sixteen years.” Since both parties are Muslim, the Court referred to Article 195 of ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, which presumes puberty on completion of the age of fifteen years for a valid marriage contract.
The judgment acknowledged that the Supreme Court, in its landmark 2017 ruling in Independent Thought vs Union Of India, struck down Exception 2 to Section 375 IPC, which had protected husbands from rape charges for intercourse with a wife between 15 and 18 years of age.
However, the High Court highlighted a crucial aspect of that ruling: “It is, however, made clear that this judgment will have prospective effect.”
Since the alleged incident in the present case occurred in 2005, long before the Supreme Court’s 2017 decision, the law as it stood at the time of the offence was applicable. The Court concluded: “Therefore, appellant cannot be held guilty for commission of rape because victim at the time of occurrence was above 16 years and physical relations between the two had taken place after solemnisation of their marriage.”
Decision
In light of these findings, the High Court allowed the appeal and acquitted Islam @ Paltoo of all charges. The judgment and order of conviction passed by the trial court were set aside. The appellant, who is on bail, was directed to furnish a bail bond in compliance with Section 437-A Cr.P.C.
