R. v. Juma Mohamed Crim. Rev. 2-M-70; 11/2/70; Kimicha J.

R. v. Juma Mohamed Crim. Rev. 2-M-70; 11/2/70; Kimicha J.

The accused was convicted on his own plea of permitting the defilement by a husband of a wife under twelve, c/s 138 (2), Penal Code. the charge-sheet had shown the age of the accused to be 50 years and the particulars of the charge were that “he being the father of one Tabu d/o Juma a girl under the age of 12 years did dispose her to be married to one Tutuba s/o Lwayamaho knowing it to be likely that the girl was still under the age of twelve (12) years be carnally known by the said Tutuba s/o Lwayamaho.” In answer to the charge the accused said – “I am the father of the girl. She is aged 10 years. I permitted her to get married and she was defiled.” This was entered as a plea of guilty.

            Held: “The Senior State Attorney did not support the conviction on the ground that the plea of the accused did not refer to any intention on his part to have the girl carnally known by her husband nor did he admit that he knew that it was likely that this would happen. That even in the facts there was nothing alleging that the accused intended his daughter to have carnal knowledge with the husband. It is clear from section 138(2) that “the intention” is an ingredient of the offence which had to be proved by the prosecution beyond reasonable doubt. In arguing this point the Senior State Attorney was not indulging in trivial technicalities because the court is aware of tribes …. Who practice child marriages on condition that the husbands to not have carnal knowledge of their wives until they attain puberty. Usually this happens when a person marries a wife who later proves to be barren. Without divorcing his wife the husband could be allowed to marry his wife’s younger sister even if she is under the age of 12 on condition that he does not have carnal knowledge of her until she attains puberty. The condition is usually observed. The main purpose of such marriages is to preserve the first marriage and for the second wife to produce children on behalf of her sister. It is relevant to not that the accused said in mitigation that –‘I warned the husband not to sleep with her until she was grown up.’ This statement enhances the doubts expressed above on the accused’s plea. For the above reasons, I find that the accused’s plea was equivocal and his conviction cannot be sustained. His conviction is, therefore, quashed and the sentence is set aside. He is to be set at liberty unless held lawfully on other charges.”