Case No.:

AC-CP-4-1958

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 317—Rape-—Intercourse with pre.-pubescent wife

·  Criminal Law—Penal Code, ss. 84 and 317—Abetting rape—Father of pre.pubescent wife not guilty of abetting rape by husband

Accused No. 1 married complainant, 10 years old, with the consent of her father, Accused No, 2, with the condition in accordance with Sharia law that he would not have sexual relations with his wife until she readied puberty. The father let his daughter live with Accused No. 1, who had sexual intercourse with her before she reached puberty. Accused No. 1 was convicted of rape under Penal Code, s. 317, and Accused No. 2 under Penal Code, S. 84/317, of abetting rape.
Held: (i) Sexual intercourse by a man with his own wife is rape if she has not attained puberty. Penal Code, s. 316, exception.

(ii) Father, having the right under Sharia law to deliver his lawfully married pre.pubescent daughter to her husband, is not an abettor to the husband’s rape because of that delivery.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. SAEED MOHAMED MAZIN AND ANOTHER

AC-CP-4-1958

Opinion of M. Cotran, Magistrate of the First Class, President of the Major Court convened at Khartoum, January 11, 1958:—Accused No. I was legally married to Lawahiz (P.W. 3) in April I955 with the consent

of her father, Accused No. 2. She was 10 or 11 years old then and had not attained puberty. It was agreed between the two accused that Accused No.1 should not have sexual intercourse with his wife she grew older. About a year after the deed, the marriage was celebrated at Omdurman, where the parties live, with the usual ceremony, and t father, Accused No. 2, thereafter allowed his daughter to go with Accused No. 1 to Dongola where Accused No. 1 had sexual intercourse with her.

The court does not believe the story that the mother of Accused No.1 and the wife of his brother seized Lahawiz from the legs and closed her mouth to allow him, Accused No. 1, to have intercourse with her.

When they, Accused No. 1 and his wife returned to Omdurman about three months later. Lahawiz told her father of what had happened. Kept silent. After staying some time in Omdurman, Accused No. 1 an his wife again left for Es Sayeed where they stayed about six month When this time they came back to Omdurman, disputes arose between the two families, resulting in the offence being reported to the police.

Accused No. 1 admits having had sexual intercourse with his wife for the first time knowing that she had not attained puberty. Accused No. 2 has clearly facilitated the commission of the offence.

The court finds that Saeed Mohamed Mazin, Accused No. 1, is Guilty under Penal Code, s. 317, and Muffarig Omar Mohamed, Accused No.2 Guilty under Penal Code, SS. 84 and 317. The evidence and statement of accused themselves clearly establish the offence with which they are charged.

Although the Sharia law allows the act of Accused No. 1, it is still an offence under the Penal Code, and we had no alternative but to convict the two accused, the charges having been proved against them.

In the circumstances, however, and in view of the fact that peace and settlement have been made between the parties, and the further fact that the wife is eventually returning to her husband, we have decided to pass a nominal sentence and we accordingly sentenced the accused to one day imprisonment each.

We consider that by tackling the case as we did, we have saved girl from a miserable life and also saved the two families from remain in permanent disputes and quarrels and perhaps committing continuo crimes.

Babikir Awadalla J. February 11 1958:—By authority of the Chit Justice. I confirm the finding and sentence against Accused No. 1. but refuse confirmation against Accused No. 2.

Whether the girl Lahawiz was or was not of sufficient build at time of her marriage to be able to sustain sexual intercourse, the was within his rights in delivering her to her husband, for in any Case

The husband is entitled to the consortium of his wife however young she may be. If the girl has not attained puberty then irrespective of her build the husband commits rape if he has sexual intercourse with her. In that case, it cannot be said that the criminal act is the direct consequence of the father’s agreeing to deliver the girl in accordance with Sharia law.

[ Editor's note: see minute of the Chief Justice in Sudan Government v. Yacoub El Sheikh ,Abdel Rahman, AC-CP-408-1958).