Rape Archives | SCC Blog

63-year-old woman aided her 65-year old husband to commit rape on a minor girl: Can she be granted bail? J&K&L HC answers

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

The petitioner invoked the jurisdiction of this Court under Section 439 CrPC seeking bail arising out of an FIR for offences under Sections 376, 109 IPC and 4 POCSO Act.

As per the prosecution case, the victim along with her father lodged a complaint alleging that the victim, who was aged about 14 years, was sent by her father to the house of the accused who happened to be the husband of the petitioner, for learning embroidery work. It was alleged that after 8 days, the victim came back to her home and two days thereafter, accused called her whereafter the victim started crying.

Further, the father of the victim enquired about the reason for crying and the victim narrated that she had been raped by the accused after making her unconscious.

In view of the above, FIR was registered, and an investigation began.

After investigation of the case, petitioner’s role as an abettor came to the fore and as such, offence under Section 109 IPC was added to offences under Section 376 IPC and 4 POCSO Act.

Later the charge sheet was laid before the trial court against the petitioner and her husband, and they started facing trial for offences under Section 376, 109 IPC read with Sections 4 and 17 of the POCSO Act.

Analysis, Law and Decision

When it comes to offences punishable under a special enactment, such as POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment.

“The provisions of CrPC including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act.”

The Bench stated that the present application was required to be dealt with by this Court in accordance with the provisions contained in Section 439 CrPC.

Coming to the facts of the present case, the petitioner was alleged to have aided and abetted her husband, the main accused, in the commission of rape upon the prosecutrix, who, as per the prosecution case, was aged about 14 years at the relevant time.

The prosecutrix had clearly implicated the petitioner and her husband in her statement recorded under Section 164 CrPC.

Bench stated that there may be certain contradictions in the statement of prosecutrix recorded during trial of the case when the same was compared with her statements recorded during the investigation of the case, but it is not open to the Court to minutely examine and weigh the evidence at the time of considering the bail plea of the petitioner.

“…the prosecutrix in her statement recorded during her trial, has supported the prosecution case and she has reiterated that she was raped twice by the husband of the petitioner with the aid and assistance of the petitioner.”

From the perusal of the record, it was clear that the petitioner was involved in the commission of offence under Section 376/109 IPC read with Sections 4 and 17 of the POCSO Act.

“Abetment of an offence carries the same punishment as is provided for that offence. Section 376(3) IPC provides punishment in a case where rape has been committed upon a woman under 16 years of age.”

High Court expressed that,

It is not an ordinary offence where the perpetrator of the crime is a young boy, but it is a case where the perpetrators of the crime happen to be persons aged more than four times that of the age of the victim.

Further, the gap in the age of the accused and the victim made their alleged act more heinous and it showed an element of perversion in the offence alleged.

Hence, merely because the petitioner happened to be a woman it did not entitle her to the concession of bail.

High Court rejected the bail application. [Zubeeda v. Union Territory of J&K, Bail App No. 8 of 2022, decided on 21-5-2022]

Advocates before the Court:

For the Petitioner(s): Mr. B. A. Bashir, Sr. Advocate. with Ms. Falak Bashir, Advocate

For the Respondent(s): Mr Sajad Ashraf, GA

Case Briefs High Courts

MP HC | Not entitled to keep the amount of compensation paid the State government in the event of a false rape case; Court allows bail

Madhya Pradesh High Court: Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

The earlier bail application was dismissed as withdrawn with liberty to file an application after prosecutrix was examined and FSL/DNA report was brought on record.

Counsel for the applicant submitted that prosecutrix was examined before the trial court on 23-03-2022 and she had turned hostile, not supporting the prosecution story. It was submitted that the trial will take time to conclude thus the applicant must be enlarged on bail.

The Court allowed the bail application after taking into consideration that the prosecutrix was already examined, she had not supported the prosecution story and applicant was in custody since 03-11-2021. The Court further asked the Trial Court to consider issuing a direction against the prosecutrix to refund the amount received by her because she admitted in her examination in chief that she has lodged false report on account of some oral dispute between the parties.

“Alleged false report is lodged, therefore she is not entitled to keep the amount of compensation paid by the State government collected from the tax payer of the country.”

[Bablesh Patel v. State of Madhya Pradesh, Misc. Criminal Case No. 22808 of 2022, 17-05-2022]

For petitioner: Mr Kamlesh Singh Rajpoot

For respondent: Mr Vivek Lakhera

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

Maternal uncle rapes his 14-year-old niece; will subsequent act of him marrying prosecutrix extinguish all criminal liabilities? SC decides

Supreme Court: In an interesting case, the Division Bench comprising of L. Nageswara Rao and B.R, Gavai, JJ., acquitted the appellant who raped his own niece and later on married her.

The Court took note of the custom in Tamilnadu which permits the marriage of a girl with her maternal uncle; and the statement of the prosecutrix that she is leading a happy married life with the appellant to hold that,

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.

The appellant belonged to Valayar community, which is the most backward community in the State of Tamilnadu and was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing raping his niece under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012.

The Trial Court convicted the appellant and sentenced him to ten years rigorous imprisonment, which was upheld by the High Court. Aggrieved thereby, the appellant had approached the Supreme Court.

The appellant submitted that the allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. The appellant argued, since he has in fact married the prosecutrix and they have two children it would not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

On the contrary, the State opposed the grant of any relief to the appellant contending that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and, second child was born when she was 17 years. The State contested the legality of marriage between the appellant and the prosecutrix and argued that the marriage might only be for the purpose of escaping punishment.

The Court considered the statement of the prosecutrix about her present status where she had categorically stated, “she has two children and they are being taken care of by the appellant and she is leading a happy married life.”

Further, taking note of the custom in Tamilnadu of marriage of a girl with the maternal uncle, the Court held that,

“In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court.”

With the holding that the Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix, the Court set aside the conviction and sentence of the appellant while granting liberty to the prosecutrix and State to move the Supreme Court for modification of the order if the appellant does not take proper care of the prosecutrix.

As a note of caution, the Court added that in the peculiar facts of the case, it shall not be treated as a precedent.

[K Dhandapani v. State by the Inspector of Police, Cr. A. No.796 of 2022, decided on 09-05-2022]

Appearance by:

For the Appellant: M.P. Parthiban, Advocate

For the State: Dr. Joseph Aristotle S., Advocate

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs High Courts

Explainer | Would striking down ‘Marital Rape Exception’ create a New Offence?

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if “NEW OFFENCE”.

Let’s break it down

In the opinion of Justice Rajiv Shakdher, on striking down MRE, no new offence would be created and for the said, following reasons were laid down:

Since the stated object of the rape law is to protect women from sexual abuse of the worst kind, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is exercised, all that would happen is, it would extend the ambit of Section 375 IPC to even offending husbands.
If the ingredients of the offence has been changed, then a new offence/new crime would have been created. All that would happen if MRE is truck down is that the offending husband would fall within the ambit of the offence.
Reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful.
MRE seeks to ring-fence the offender based on his marital relationship with the accused.
What is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC. The penal law is act/omission centric and, in most situations, is neutral to who the perpetrator of the crime is.

The ratio of the judgment of the House of Lords in R v. R in Justice Shakdher’s opinion was squarely applicable, both for the proposition that striking down MRE does not create a new offence and that if such step is taken, the Court need not leave the matter to the legislature.

Justice C. Harishankar’s Opinion

The proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional, said Justice Shankar.

Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgements which would result in an act, otherwise not an offence, being rendered an offence.
A court cannot legislatively stipulate the punishment for the offence. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence.

[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]

Case Briefs High Courts

Split Verdict on Criminalisation of Marital Rape| Can a Husband be labelled as a rapist? Does MRE provides impunity to offender? One says ‘Yes’, other says ‘No’ [DETAILED REPORT]

Delhi High Court: In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

“Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.”

–Justice Rajiv Shakdher

Whether or not Exception 2 Section 375 of the Penal Code, 1860 should remain on the statute?

Remarks before pronouncing the ruling

I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on.

— Justice Rajiv Shakdher

Whether Marital Rape Exception should be struck down?

Those wanting to strike down Exception 2 to Section 375 IPC, also seek striking down of Section 376B which concerns sexual intercourse by a separated husband with his wife, albeit, without her consent.

Further, prayer to strike down Section 198B of the Code of Criminal Procedure, 1973 which prohibits a Court from taking cognizance of an offence punishable under Section 376B IPC except upon satisfaction of facts which constitutes the offence once a complaint is lodged by the wife against her husband was also filed.

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

Constitutional Viability of classification between married and unmarried women in the context of Article 14

Justice Rajiv Shakdher expressed that there can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape, the said principle is the bedrock on which Section 375 IPC was founded.

Further, it cannot be doubted that there is a differentia between married, separated, and unmarried couples.

Marital Rape Exception grants impunity to an offender based on his relationship with the victim.

In Justice Shakdher’s opinion, the classification was unreasonable and manifestly arbitrary as it seemed to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.

Sex-worker has been invested with the power to say “no”; by the law; but not a married woman.

In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease, or she is herself unwell finds no space in the present framework of rape law. Thus, the rape law as it stands at present is completely skewed insofar as married women are concerned.

Hence, in his view MRE, violates the equality clause contained in Article 14 of the Constitution and MRE with one stroke deprives nearly one-half of the population of equal protection of the laws.

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman.

Conjugal expectation

Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-à-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition.

Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage

Justice Shakdher agreeing with Karuna Nundy, Advocate stated that sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

Invasion of Private Space

The prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as “sacrosanct” space.

In Justice Shakdher’s opinion, the above was morally suspect and legally untenable.

The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her.

Gathering evidentiary material would be difficult

In the opinion of Justice Shakdher, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law.

New Offence

To strike down MRE, would create a new offence, is misconceived for the following reasons:

(i) Firstly, the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands.

(ii) Secondly, a new offence/new crime would perhaps have been created if the ingredients of the offence had changed. [See People v. Liberta] It is no one’s case that the ingredients of the offence have changed; all that would happen if MRE is struck down is that the offending husband would fall within the ambit of the offence.

iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. [See C.B. Gautam v. Union of India (1993) 1 SCC 78; Navtej Singh Johar; and Harsora v. Harsora.]

(iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ring- fence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds.

(v) Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC.

MRE violates Article 21 of the Constitution

The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing.

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally.”

“Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals.”

MRE violates Articles 15 and 19(1)(a) of the Constitution

Continuance of MRE, violates Article 15 of the Constitution since it triggers discrimination against women based on their marital status. The said exception impairs and abstain the power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses.

MRE is violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

Separated husbands

Since Justice Shakdher concluded that granted impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist.

“…separated husbands would suffer the same punishment, as prescribed for any other rapist under Section 376(1) of the IPC, as that would be the logical sequitur of striking down MRE.”

Conclusion

(i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.

(ii) The aforesaid declaration would, however, operate from the date of the decision.

(iii) The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

(iv) Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court.

Justice Shakdher concluded that Exception 2 to Section 375 and Section 376B of the IPC as well as Section 198B of the Code of Criminal Procedure (CrPC), as they relate to husband or separated husband having sexual intercourse with his wife without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down.

Justice C. Hari Shankar’s Opinion

Justice Shankar stated that it is not to judge whether non-consensual sex within marriage ought, or ought not, to be punished or, if it is, to opine appropriate punishment that should visit the perpetrator of the act.

Re: Article 14

Justice Shankar stated that the act of sex, when it takes place between parties who are joined by marriage, declares the impugned Exception, is in no case rape.

“Applying the “intelligible differentia” test, the impugned Exception would, therefore, infract Article 14 only if the relationship of marriage, between the man and woman involved in the act, does not provide any intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception.”

The ‘institution of marriage’, and the intelligible differentia that results

Petitioners completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband.

“Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters.”

Further, Justice Shankar added that, there can be no comparison, whatsoever, between the relationship between a husband and a wife, with any other relationship between man and woman. It is for this reason that there is an enforceable legal right – which even Ms Nundy acknowledged – of each party in a marriage, to cohabit with, and for the consortium of, the other.

Petitioner’s counsel completely failed to accord to the marital relationship, the status and importance it deserves.

“Marriage is an institution which epitomizes, at the highest level, the most sublime relationship that can exist between man and woman.”

In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of “rape” has place. Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.

—Justice Shankar

In his view, introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist if he has, on one or more occasions, sex with her without her consent, would be completely antithetical to the very institution of marriage.

Adding to the above observation, it was expressed that,

“Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent.”

“The expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond.”

Elaborating further, Justice Shankar remarked that, any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but ex facie unrealistic.

Stating that, if the legislature, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as rape, and non-consensual sex by a husband with his wife, as not rape, Justice Shakdher was unable to subscribe to the submission that the distinction violates Article 14 of the Constitution of India.

Re. the argument that the impugned Exception creates “three classes of victims”

In the case of an act of non-consensual sex between a husband and wife, there is no societal ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act takes place within the privacy of the marital bedroom and, more empirically, because the man and the woman are married.

Conjugal right v. Conjugal expectation

The impugned Exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible differentia between the two situations, stated Justice Shankar.

“The impugned Exception does not seek, directly or indirectly, to enforce a non-enforceable conjugal right, or even a conjugal expectation.”

Justice Shankar elaborated its observation stating that, the impugned Exception, applies to subsisting and surviving marriages, where the husband and wife are together, and not separated.

“In a subsisting, and surviving, marriage, where the husband and wife are staying together and cohabiting, if the legislature feels that an allegation of rape – and, consequently, the chance of the husband being called a rapist – should find no place even if, on one occasion or the other, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally?”

In Justice Shankar’s opinion, this Court cannot approach the issue before it with a view of pronouncing on whether non-consensual sex within marriage ought to be punished, or not, and, if it feels that it should, find a way of doing so. That is exclusively the province of the legislature.

Consent and the ‘effect doctrine’

In Court’s opinion, there was nothing in the impugned Exception which obligated a wife to consent to having sex with her husband, wherever he so requests. It does not even obliquely refer to consent, or want of consent.

Conclusion

(i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself,
(iii) the impugned Exception does not violate Article 19(1)(a),

(iv) the impugned Exception does not violate Article 21,

(v) none of the indicia, on which a statutory provision may be struck down as unconstitutional, therefore, can be said to exist, and

vi) in such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, hence challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.

Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court as the present matter involved substantial questions of law.[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]

Advocates before the Court

….. Petitioner
Ms Karuna Nundy with Mr Mukesh Sharma and Mr Raghav Awasthy,

….. Respondent
Mr Tushar Mehta, SG and Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC along with Mr Vinay Yadav, Mr Amit Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Rajat Nair, Mr Sahaj Garg and Mr R.V. Prabhat, Advs.

for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advs.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.
Mr Amit Lakhani and Mr Ritwik Bisaria as Intervenors for Men’s Welfare Trust.

W.P.(C) 5858/2017 & CM No.45279/2021

… Petitioner
Mr Colin Gonsalves, Sr. Adv. With Ms. Olivia Bang, Ms Sneha Mukherjee, Ms Mugdha and Ms Aimy Shukla, Advs

….. Respondents

Mr Ruchir Mishra, Mr Sanjiv Kumar Saxena, Mr Mukesh Kumar Tiwari and Mr Ramneek Mishra, Advs. for UOI. Mr Gautam Narayan, ASC, GNCTD with Ms Nikita Pancholi, Adv.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

Mr R.K. Kapoor, Advocate for applicant in CM 19948/2016.

W.P.(C) 6024/2017

…Petitioner

Ms Karuna Nundy, Ms Ruchira Goel, Mr Rahul Narayan, Mr Nitish Chaudhary, Ms Ragini Nagpal, Ms Muskan Tibrewala, Mr Utsav Mukherjee and Mr Shashwat Goel, Advs.

…. Respondent
Mr Chetan Sharma, ASG with Mr Anil Soni, CGSC along with Mr Devesh Dubey, Mr Vinay Yadav, Mr Amit Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Sahaj Garg and Mr R.V. Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

W.P.(CRL) 964/2017

…… Petitioner

Mr Sahil Malik, Adv.

….. Respondents Ms Nandita Rao, ASC for State.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

Split Verdict on Criminalisation of Marital Rape Decision: One strikes down the exception, one upholds [Report to be updated]

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Case Briefs High Courts

Utt HC | Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case; appeal dismissed in POCSO matter

Uttaranchal High Court: Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

Victim, who was merely a child of 9 years of age, has been traumatized at the hands of appellant who raped and sodomized the victim, who was none other than his real niece. Amicus Curiae argued that there was no evidence against the appellant; there was no medical report regarding sexual offence; and the trial Court did not assess the evidence properly. Counsel for the State has argued that the prosecutrix was minor; she supported the prosecution story; there is no infirmity in the impugned finding; and accordingly, the appeal was liable to be dismissed.

From the evidence of witnesses it was borne out that the accused-appellant who was none other than the real maternal uncle of the victim, had sexually molested the victim 2-3 times earlier than the incident of 27-04-2014 when he was nabbed red handed by his own sister. The accused not only sexually assaulted the victim but also sodomized her. The entire tale of incidents had unequivocally been disclosed by the victim who appeared in the dock of the Court. Moreover, the medical evidence in this case further corroborated the prosecution story.

The Court relied on the judgment of the Supreme Court in Ganesan v. State, (2020) 10 SCC 573 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 where it was held that the testimony of a victim was found reliable and trustworthy, conviction on the basis of her sole testimony is permissible.

The Court stated that it is well settled that in cases involving sexual harassment, molestation etc., the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

The Court finally dismissed the appeal holding that the testimony of the victim was absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, without any further corroboration, the conviction of the accused relying upon the testimony of prosecutrix was sustained.[Ashok Singh Kandari v. State of Uttarakhand, 2022 SCC OnLine Utt 400, decided on 07-05-2022]

Counsel for the appellant : Mr Mukul Dangi

Counsel for the State : Mr V. S. Rathore

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

MP HC │ Permission to change statement before Court would be dangerous for legal system and it may be also misuse of S. 311 of CrPC; application for restatement after 2 years dismissed

Madhya Pradesh High Court: Anil Verma, J. dismissed a criminal revision filed against the impugned order whereby an application preferred by the applicant/prosecutrix under Section 311 of CrPC was been dismissed.

The father of the applicant/prosecutrix had lodged an FIR that his minor daughter was missing from his house. During the investigation, it was found that the respondent / accused person abducted the minor prosecutrix and committed rape upon her. trial Court after framing the charges afforded an opportunity of hearing to the parties to adduce their evidence. Prosecutrix has been examined before the trial Court and after two years of examination, the applicant / prosecutrix had filed an application under Section 311 of Cr.P.C. stating that earlier when her statement was recorded she was minor and she deposed her statement under the pressure of her parents. Now she became major and got married, therefore, she wants to adduce her evidence afresh and wanted to examine herself as a witness before the trial Court again. Trial Court had rejected the application.

Considering all the facts and circumstances of the case it was established that on earlier occasion prosecutrix was examined before the trial Court and after two years of her examination she has filed this application for restatement, but during the period of above 02 years prosecutrix did not made any complaint before the trial Court by stating that her statement was taken under the pressure of her parents.

The Court noted that prosecutrix statement had been recorded by the trial Court with due care and according to the law and after expiry of 02 years she has filed this application for re-examination, in these circumstances it appears that prosecutrix may be win over by the accused person by any undue means. Even if she permitted to change her statement before the Court, it would be dangerous for the legal system and it may be also misuse of Section 311 of Cr.P.C.

Criminal revision filed under Section 397 read with Section 401 of the Cr.P.C. was dismissed opining that impugned order passed by the trial Court was just and proper and does not suffer from any legal infirmity.[X v. State of Madhya Pradesh, 2022 SCC OnLine MP 893, decided on 07-05-2022]

For applicant: Mr Surya Patil

For respondent: Mr Ranjeet Sen, Mr Pankaj Taknet

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

Sikk HC | Trial Courts should exhibit sensitivity to the plight of a child victim but they cannot go overboard and stonewall steps that are mandatory to be complied with when analysing and interpreting evidence given by witnesses; Sentence of rape accused modified

Sikkim High Court: The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”), on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs.30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

In appeal the counsel for the appellant contended that FIR was lodged belatedly on 12-10-2019, the incident allegedly having taken place on 05-10-2019, but the delay was unexplained. It was further pointed out that the I.O. in his evidence has admitted that the vaginal swab of the victim and the penile swab of the Appellant were sent for chemical analysis to RFSL Saramsa, however, neither the document nor the examiner were before the Court. The I.O. admitted that no bodily fluids, blood or semen could be detected on the items forwarded to the FSL, which thereby negatives the Prosecution case, Doctor who examined the victim found no traces of penetrative sexual assault.

The question for consideration was whether the Trial Court was correct in its reasonings leading to the conviction of the Appellant?

The Court believed that Trial Court while examining a witness under the provision of the POCSO Act is required to be more careful and circumspect relying on Nipun Saxena v. Union of India, (2019) 2 SCC 703 and in the case at hand, it is unlikely that the child was aware of what she had stated to the Magistrate earlier or how “showing” her the Section 164 Cr.P.C. statement would enable her to understand or verify the contents, further it was stated that it was now no more res integra that a statement under Section 164 Cr.P.C. was not substantive evidence as held in R. Shaji v. State of Kerala, (2013) 14 SCC 266. The Section 164 Cr.P.C. statement of the victim was thus disregarded by the Court as being an unproven document.

The Court further believed Trial Court in its alacrity to come to the rescue of the child has decided on its own, without specific description of the act by the victim, to interpret the word “chara” as an act of penetrative sexual assault. This Court is all for the Trial Courts exhibiting sensitivity to the plight of a child victim but they cannot go overboard and stonewall the steps that are mandatorily to be complied with when analysing and interpreting the evidence given by the witnesses. If the victim was competent to testify she was also competent to explain the act and what it involved. If the act is not described, the Court cannot arrive at a conclusion based on its own assumptions.

Court on further perusal of evidence concluded that the Appellant was naked and had undressed the child as well, limiting the offence to one under Section 18 of the POCSO Act for an attempt to commit an offence under Section 7.

For the argument of delay in lodging of the FIR the Court reiterated what the Supreme court held in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 that delay in lodging of the FIR in such cases does not vitiate the Prosecution case.

The Court in the light of evidence concluded that the Prosecution has failed to prove its case under Section 5(m) of the POCSO Act. The Court stated that they were aware of the fact that it is now settled law that there does not necessarily have to be physical indications of the offence of penetrative sexual assault but at the same time it is to be borne in mind that the victim is aged about 9 years while the Appellant is a grown man of 40 years. In such a situation, the act of penetrative sexual assault on a child will have physical repercussions and the indications of such an assault would be apparent on the genital/private parts of the victim. Thus, the Court opined that there was no penetrative sexual assault committed by the Appellant on the victim. The Prosecution case on this aspect has remained unproved. However, the offence of an attempt to commit “sexual assault” as defined under Section 18 of the POCSO Act cannot be ruled out. Finally, partly allowing the appeal and in the light of provision of Section 222(2) of the Cr.P.C., the Appellant was convicted under Section 18 of the POCSO Act read with Section 7 of the same Act. He was sentenced to undergo rigorous imprisonment for one year six months and to pay a fine Rs 10,000/- (Rupees ten thousand) only.[Ash Bahadur Subba v. State of Sikkim, 2022 SCC OnLine Sikk 42, decided on 05-05-2022]

Mr Jorgay Namka, Advocate (Legal Aid Counsel) for the Appellant.

Mr Sudesh Joshi, Public Prosecutor with Mr Yadev Sharma, Additional Public Prosecutor and Mr Sujan Sunwar, Assistant Public Prosecutor for the State-Respondent.

Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The Press News

13-year old gang rape victim allegedly raped by in-charge at a police station: NHRC takes suo motu cognizance

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of a media report that a 13 years old girl was raped by the in-charge of police station in the Lalitpur district of Uttar Pradesh when she went to register an FIR about her gang rape.

The Commission has observed that the contents of the media report, if true, amount to human rights violations of the victim. Accordingly, it has issued notices to the Chief Secretary and the Director-General of Police, Government of Uttar Pradesh calling for a report within four weeks.

According to the media report, the officer concerned has been placed under suspension and an FIR has been registered against him. The relevant sections of the POCSO Act have been applied. Other police officers posted at the police station have also been removed from the duty and a DIG level officer will be investigating the case.

National Human Rights Commission

[Press Release dt. 4-5-2022]

Cases Reported Supreme Court Cases

2022 SCC Vol. 2 Part 4

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Short Notes: 6

Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012): Manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. Amended S. 3 proviso 2 is applicable to University located in State of Manipur which is one of the States of “Specified North-Eastern Region” in terms of S. 2(ia). S. 3 provisos 2(a) & (b) is applicable to “Specified North-Eastern Region” in S. 2(i-a) and not limited only to the tribal States covered by the Sixth Schedule to the Constitution. This became possible after the amendment of S. 3 and insertion of S. 3 provisos 2(a) & (b) by the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 (Amendment Act). [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Re S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012), Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Constitution of India — Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2): Judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Re Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2), Constitution of India judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Generally —Postgraduate/Superspeciality courses: State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021, held, cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021 cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

Electricity Act, 2003 — S. 9 and S. 2(15) r/w S. 42(4) — Electricity distribution system — Wheeling charges for use of distribution system: Additional surcharge on wheeling charges under S. 42(4), if consumer does not receive supply of electricity from the distribution licensee but uses the system, is not applicable to captive consumers. Ordinary consumers under S. 2(15) to whom S. 42(4) is applicable, clarified. Rationale why such additional surcharge is justified, explained. Rights of captive consumers distinguished from ordinary consumers. Captive consumers, held, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from the distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Re S. 9 and S. 2(15) r/w S. 42(4), Electricity Act, 2003 qua wheeling charges for use of distribution system, captive consumers, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Energy, Power and Electricity — Electricity — Tariff — Exemption provision: Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision, held, needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when the words are clear and unambiguous. Thus, held, charitable educational institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of electricity duty on or after 8-8-2016 i.e. from the date on which Maharashtra Electricity Duty Act, 2016 (2016 Act) came into effect. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when words are clear and unambiguous. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Labour Law — Domestic/Departmental Enquiry — Acquittal in criminal proceedings — Effect: Principles reiterated regarding invocation of cl. (1)(g) of Sch. IV of the MRTU & PULP Act, 1971, for setting aside dismissal order. Applicability of said cl. (1)(g), also explained. [Maharashtra SRTC v. Dilip Uttam Jayabhay, (2022) 2 SCC 696]

Motor Vehicles Act, 1988 — S. 173 — Appeal: Growing number of appeals by claimants, insurers and vehicle owners against award passed by Tribunal are resulting in large pendency of appeals before various High Courts. Idea of “Motor Vehicle Appellate Tribunals” mooted and detailed suggestions given. [Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767]

Penal Code, 1860 — Ss. 302, 376, 364, 366-A and 201 — Rape and murder of 5 yr old girl by strangulation: Low age of victim cannot be considered as only or sufficient factor by Supreme Court for imposing death sentence. Sentences awarded to appellant under Ss. 376, 364, 366-A and 201 IPC, upheld. However, considering mitigating circumstances, death sentence awarded under S. 302, is commuted to life imprisonment with stipulation that appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 yrs. Further held, further sentences awarded shall run concurrently and not consecutively. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Ss. 24(1)(a), 25(1) and 114(1) & (2) — Acquisition proceedings: Saving of provisions of the Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Re Ss. 24(1)(a), 25(1) and 114(1) & (2), Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 saving of provisions of Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Case Briefs High Courts

Guj HC | First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

Gujarat High Court: A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The complainant in the FIR mentioned that she had a suspicion on her daughter prosecutrix, who was aged 15 years 07 months and 29 days and was studying in the 10th Std thus when she inquired about the same she admitted her relationship with the applicant since one and half years ago. It was alleged that the applicant coerced her to meet again and again. It was further alleged that one year ago the applicant forced the prosecutrix to meet him outside her society and on the same day, at around 7 p.m., the applicant took her to an open ground in the Naroda GIDC where the applicant, had forced her to have physical relationship and again after one and half months, without her wish, she was forced to have such relationship, and lastly she had physical relations, around last Diwali also. It was alleged that during the last act, the applicant had promised her to marry her and on such wrong pretext, he had developed physical relationship.

The Court after hearing both the parties drew some observations keeping in mind the decision of the Supreme Court in Siddharam Satlingappa Mhetre v. State Of Maharashtra, (2011) 1 SCC 694 where certain parameters were drawn by the Supreme Court. The Court noted that the allegations of having developed physical relationship by the applicant with the prosecutrix are prior to his attaining the age of majority. The Court stated that, the first step of turning him into a hardcore criminal will be sending him behind bars. The moment he is allowed to go behind bars, the efforts to make him a good and law abiding citizen will get dented. The applicant is a young student studying in First Year college and it is expected from him to observe and follow the fundamental duties of a good citizen as enshrined in Article 51-A of the Constitution of India.

The Court found that the facts of the case were neither shocking nor serious which can impede the grant of bail. The bail application was allowed.[Aryan Siris Garange v. State of Gujarat, R/Criminal Misc. Application No. 5692 of 2022, decided on 07-04-2022]

Mr Yatin N. Oza, Sr. Adv. with Mr Anurag Rathor, for Applicant(s) 1

Mr Ronak Raval, APP for Respondent(s) 1

Mr Nishith P Thakkar for the original first informant

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

Cal HC | Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

Calcutta High Court: The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

Advocate General had informed that in respect of rape of a minor girl at village Nehalpur, the statement of the victim under Section 164 Cr.P.C. had to be recorded that day. In respect of the incident at Nandipara, Kuchenkora area he submitted that the culprit has been arrested and his confessional statement has been recorded. It was informed that in respect of another incident of rape of a minor girl on the day of Dol Purnima, he has submitted that two persons have been apprehended, one of them is minor and that the statement of victim under Section 164 Cr.P.C. has been recorded. He has also submitted that medical examination of the victim as also the accused has been done and the protection as directed by this Court has been extended.

Petitioner suggested the name of Smt. Damayanti Sen, IPS stated to be posted as the Special Commissioner of Police to Kolkata Police, for supervising the investigation due to her previous performance and independent way of working in earlier investigations.

Court was of the opinion that looking at the nature of incidents and the allegations which have been made senior lady police officer should be appointed to supervise the investigation. Considering the material pointed out, the Court directed the investigation of the incidents at village Nehalpur, Nandipara, incident on Dol Purnima noted above as also the incident of rape at English Bazar will be done under the supervision of Smt. Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police.

Progress of the investigation report to be filed in the next hearing on 20-04-2022.[Sumitra Bhattacharyya (Neogi) v. State of West Bengal, WPA(P) 139 of 2022, decided on 12-04-2022]

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man? Ker HC explains

Kerala High Court: Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

In the present matter, the petitioner who was the sole accused faced trial for the offences punishable under Sections 376(1) and 376(2)(n) of the Penal Code, 1860.

The prosecution’s case was that the petitioner after giving a false promise of marriage sexually assaulted the victim/2^nd respondent on several occasions.

In Court’s opinion, there was nothing to attract the basic ingredients of Sections 376(1) or 376(2)(n) of the IPC.

As per the FIS and statement under Section 164 CrPC, the petitioner and the victim studied together and they were in love. In fact, they had decided to marry, but due to some reasons beyond their control, they could not marry.

Later, the victim married another person and the alleged sexual acts with the petitioner were taken place during the subsistence of the marriage of the victim with the said person.

Respondent 2’s submitted that it was not her case that the sex they had was forcible. But according to her, she consented to sex persuaded by the promise of marriage given by the petitioner.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge. (Ranjith v. State of Kerala, [2022 (1) KLT 19]

In the instant matter, the married woman who had sex with her former lover, knew pretty well that she cannot enter into a lawful marriage with the petitioner.

Supreme Court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 and in Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191, while drawing distinction between rape and consensual sex observed that the Court must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.

In drawing a distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that, if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape.

High Court opined that the sex that the petitioner and the victim had was purely consensual in nature.

“Nothing on record to show that the petitioner had made a false promise only to satisfy his lust.”

Further, the Bench stated that no question of promise to marry arises inasmuch as 2^nd respondent was a married woman and she knew that a legal marriage with the petitioner was not possible under the law, hence offence of rape cannot be constituted as it was apparent that the consent was not given by her on the basis of any misconception.

Therefore, all the further proceedings stood quashed. [X v. State of Kerala, Crl. MC No. 4933 of 2021, decided on 29-3-2022]

Advocates before the Court:

For the Petitioner:

By Advs.

Nirmal V Nair, M. Aneesh and Ajai Babu

Other Present:

Sri Sangeetha Raj – Public Prosecutor

Case Briefs High Courts

Physical relations on Promise to Marry| Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC? Del HC explains

Delhi High Court: Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

A petition was filed under Sections 397/401 CrPC read with Section 482 CrPC for setting aside the decision of Additional Sessions, Tis Hazari Courts arising out of an FIR registered for offences under Section 376(2)(n) of the Penal Code, 1860.

Factual Background

Petitioner had extended a false promise of marriage to the prosecutrix on the basis of which he had sustained a physical relationship with her.

It was stated that the prosecutrix and the petitioner were engaged, but the wedding was postponed due to some issues on the family of the prosecutrix. Prosecutrix had requested the petitioner to marry her by way of court marriage or in Arya Samaj Temple and the said request was rejected by the petitioner.

Prosecutrix alleged that the petitioner’s family raised the issue that the prosecutrix was not financially well-off and that the petitioner wanted to marry a girl whose father would have the wherewithal to invest money in his marriage. Hence the FIR was registered under Section 376(2)(n) IPC.

In January, 2020 the Court had granted anticipatory bail to the petitioner, after which a charge sheet was filed and Trial framed charges against the petitioner. On being aggrieved with the same, the instant revision petition was filed.

Analysis, Law and Decision

As per Section 376(2)(n) IPC, whoever commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine.

The primary allegation in the instant matter was that under the garb of marriage, the petitioner repeatedly raped the prosecutrix.

High Court examined the difference between a false promise of marriage and breach of promise to marry.

Breach of Promise to Marry: In this, sexual relations are initiated on the premise that two individuals will marry at a later point in time.

False Promise of Marriage: Sexual relations take place without any intention of marrying at all and the consent that is obtained for the said relations to take place is vitiated by way of misconception of fact. The said aspect was elaborate by the Supreme Court in various decisions, one of such judgments was: Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608.

In the decision of Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, Supreme Court had categorically distinguished between rape and consensual sex, as well as the distinction between mere breach of a promise and not fulfilling a false promise.

Hence, in order to arrive at the conclusion that the sexual relations were coerced, it is necessary to examine whether at the stage of rendering a promise to marry, it was done with the intention of not keeping the promise and, therefore, was false at the inception of itself. (Sonu v. State of U.P., 2021 SCC OnLine SC 181)

As per the FIR, the prosecutrix and petitioner were in a long term relationship and were engaged.

On perusal of Section 90 IPC, it is clear that consent given under fear or misconception cannot be said to be consent. In the instant matter, Bench stated that the petitioner and prosecutrix were in a long-term relationship and furthermore, an engagement ceremony had taken place between the two.

The above-said indicated that the petitioner intended to marry the prosecutrix, but just because the relationship ended on hostile terms, it could not be concluded that the petitioner had no intent to marry the prosecutrix in the first place.

From the above, the High Court opined that consent so accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear.

Bench concluded that the impugned order failed to accord the reasons to substantiate how there was sufficient material to proceed against the petitioner under Section 376(2)(n) of the IPC.

Trial Court is not a mere post office and must apply its mind to the facts of the case to arrive at the conclusion as to whether a prima facie case is made out against the accused that would warrant charges to be framed against them.

In view of the above petition was allowed. [Shailendra Kumar Yadav v. State, 2022 SCC OnLine Del 976, decided on 5-4-2022]

Advocates before the Court:

For the Petitioner:

Badar Mahmood, Advocate

For the Respondent:

Neelam Sharma, APP for the State with SI Ajay Singh, Police Station Paharganj. Complainant – in person

Case Briefs High Courts

In view of changed definition of rape under S. 375 (b) of IPC pari materia to S. 3(b) of POCSO Act, whether sexual intercourse is necessary to attract ingredients of offence of rape or penetrative sexual assault? Chh HC elaborates

Chhattisgarh High Court: Addressing a case wherein a minor girl was subjected to sexual, Deepak Kumar Tiwari, J., held that,

In view of the changed definition of rape under Section 375 (b) of the IPC pari materia to Section 3(b) of the POCSO Act, sexual intercourse is not necessary to attract the ingredients of offence of rape or penetrative sexual assault.

An appeal was filed against the judgment passed by the Additional Sessions Judge whereby the appellant was convicted under Sections 363 and 366(A) of the Penal Code, 1960 and Section 6 of the Protection of Children from Sexual Offences Act, 2012.

Background

The mother of the prosecutrix had lodged an FIR stating that after coming back from work, her daughter (prosecutrix) (PW-2) informed her that she was having pain in her vagina.

Prosecutrix informed that the appellant took her to the dilapidated house and after laying her down on the ground, the appellant removed her underwear and thereafter committed sexual intercourse with her. In view of the said incident, an FIR was lodged by the mother.

Analysis and Decision

High Court noted that the prosecutrix a 5-year-old girl had deposed that the appellant took her to the dilapidated house and after laying her down disrobed her and also removed the clothes of her friend Dev, a minor.

Further, she stated that the appellant inserted his finger into her vagina and when she started weeping, the appellant left her. She narrated the whole incident to her mother and the mother found her private part swelled and red.

PW-4 examined the prosecutrix and found that the redness was present at the pelvic region and hymen was freshly torn and the tip of the finger could be entered into the vagina. She concluded that the injury was caused by a hard and blunt object.

Considering the definition of rape under Section 375(b) of the Penal Code, 1860 and also the corresponding pari materia Section 3(b) of the Protection of Children from Sexual Offences Act, 2012 defining penetrative sexual assault, as also Sections 4, 5, 5(m), 6 of the POCSO Act, it was observed that the Trial Court after evaluating the entire evidence in a proper manner, rightly convicted the appellant under Section 363 and 366 of the IPC and under Section 6 of the POCSO Act.

Hence, in view of the above, the trial Court’s decision was not liable to be interfered with.

The appeal was dismissed. [Ravi Khutiyare v. State of Chhattisgarh, 2022 SCC OnLine Chh 579, decided on 25-3-2022]

Advocates before the Court:

For Appellant: Shri A.K. Yadav with Shri Vikas Pandey, Advocate.

For Respondent: Ms. Smriti Shrivastava, Panel Lawyer.

Case Briefs High Courts

Megh HC | FIR and proceedings in Special POCSO Case quashed; Minor ‘victim’ gave birth to child while living with accused as his wife

Meghalaya High Court: W. Diengdoh, J. allowed a petition which was filed praying to quash the criminal proceedings pending in the Court of the Special Judge (POCSO) under Section 5(j)(ii)/6 POCSO Act, 2012.

Counsel for the petitioners submitted that the petitioner 1 and petitioner 2 were husband and wife and in course of their relationship, the petitioner 2 got pregnant and accordingly, the petitioner 1 took her to Nazareth Hospital, Shillong for medical checkup. However, the hospital authorities on confirming that the petitioner 2 was pregnant and that her age was about 17 years at the relevant time had accordingly informed the police of the matter. An FIR was lodged and prayer for suo moto case was registered and investigation was made by the said informant. On completion of the investigation, the charge sheet was filed finding a well-established prima facie case against the petitioner 1 and he was accordingly made to stand trial before the Court.

Counsel for the petitioner further submitted that both petitioners were husband and wife and were living together as husband and wife with the knowledge of the family members from both sides and it was a fact that out of the cohabitation between the couple, a male child was born to them and none of the family members wished to proceed with the case against petitioner 1. It was further submitted that this was not a case where a heinous crime of rape has been committed and thereafter, a subsequent compromise has been arrived at between the parties, but as stated above is a consequence of a relationship between two young persons who were in love.

The Court relied on the judgments of the Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470, Vijayalakshmi v. State, 2021 SCC OnLine Mad 317, Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Ramgopal v. State of M.P., 2021 SCC OnLine SC 834 and agreed that,

“…Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions…” and again, it was said that “…the touchstone for exercising the extra-ordinary power under section 482 Cr.P.C. would be to secure the ends of justice…”.

The petition was thereby allowed and FIR, proceedings and orders against the petitioner were set aside and quashed[Shembhalang Rynghang v. State of Meghalaya, 2022 SCC OnLine Megh 67,decided on 23-3-2022]

For the Petitioner/Appellant(s): Mr K. Ch. Gautam

For the Respondent(s): Mr K. Khan, Sr. PP. with Mr S. Sengupta, Addl. Sr. GA., Mr H. Kharmih, Addl. Sr. GA., Mr A. H. Kharwanlang, GA.

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

MP HC | Inquiry ordered against Police Officer for suppressing evidence in rape case

Madhya Pradesh High Court: Vivek Agarwal, J., took up a bail application moved by the Applicant accused for offences punishable under Sections 376 (rape), 506 (criminal intimidation) IPC, under Sections 3,4 POCSO Act, under Sections 3(1)(W)(ii), 3(2)(v) SC-ST (Prevention of Atrocities) Act and under Sections 67, 67(A) The Information Technology Act.

As per the prosecution story, the Applicant was known to the Prosecutrix and had committed rape upon her. He took a video of the same and threatened her not to speak of it with anyone. Later on, the Prosecutrix received the said video on her mobile phone. She then brought it to the notice of her mother who took her to the police station to register the crime. The Court, while examining the submissions of the parties, drew its attention to the fact that despite the Prosecutrix producing the video clip before the police, the same was not made a part of the case diary. The Court, vide order dated 22-03-2022, directed the police to provide an explanation for the lapse.

T.I Bahoriband, District Katni tendered her unconditional apology for not making it a part of the case diary sent to the Office of the Advocate General and based on the which it was evident that the T.I of Police Station Sleemnabad, District Katni was prima facie guilty of suppressing the correct facts & not forwarding the relevant copies of the document(s), which were filed before the competent Court.

The Court directed the Deputy Inspector General of Police to conduct an inquiry into the conduct of delinquency on the part of the T.I. Sleemnabad, District Katni, who had forwarded incomplete case diary pertaining to Crime No.424/2021 suppressing the material document(s) so as to facilitate bail of the accused & furnish its report through Principal Registrar (Judicial).

The bail application was dismissed as withdrawn after the counsel for the applicant was informed that a compact disc of obscene video had been recovered from the mobile of the applicant.[Shivkumar Kushwaha v. State of Madhya Pradesh, Misc. Criminal Case No. 5948 of 2022, decided on 24-03-2022]

For applicant: Mr Ram Bihari Gautam

For State: Mr Piyush Jain

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

If a man rubs his organ on vagina over victim’s underpants, would that amount to rape? Megh HC answers

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ and W. Diengdoh, J., addressed that, if the victim’s underwear was not taken down and the man merely rubbed himself on the victim’s crotch while she still wore her underpants, would that amount to commission of rape.

In the present matter, though the appellant had been found of having committed rape, no case of penetration in terms of Section 375 of the Penal Code, 1860 was made out.

In 2006, a complaint was lodged whereupon the minor victim was medically examined. On examination, it was found that the victim’s vagina was tender and red and her hymen was ruptured. The opinion rendered by the medical examiner was that the girl had been raped and was suffering from mental trauma.

In course of the examination-in-chief, the victim claimed that the appellant herein grabbed the victim and took the victim to a bed where he made the victim lie down before “he took his pant and he pulled my undergarments and then he raped me”.

However, in the cross-examination the victim had to say the following:

“… After the accused entered my house he caught hold of my hands, opened his long pants and mine, but he did not open my under wear, he then took me to the bed which was in the bedroom and then rape me. I did not scream for help when I saw the accused opened his under pant as I was scared of him. I did not feel pain after the accused had rape me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my underwear. It is a fact that I was tutored by my mother before I came to the Court today”.

Appellant stated that, if the victim’s underwear was not taken down and the appellant merely rubbed himself on the victim’s crotch while she still wore her underpants, there would be no commission of any rape.

It was also asserted by the appellant that, considering that the appellant was of average intellect with no formal education, his confession must be regarded as having committed a wrong, but merely because his translated statement revealed that he had confessed to having committed rape, it would not imply that there was penetrative sex, particularly since the victim’s version was such that would rule out any element of penetration, which was the key to the commission of the offence of rape.

Bench stated that, in any event, by virtue of Section 375(c) of the Penal Code, when a person manipulates any part of the body of a woman so as to cause penetration into, inter alia, the vagina or urethra, the act would amount to rape.

Further, the Court added that, in the absence of the appellant herein establishing any alternative reason for the victim suffering the tenderness in her vagina or ruptured hymen or pain that she complained of in the context of the physical abuse that she was subjected to, merely because the victim may have said that she did not endure any pain at the relevant time may not absolve the appellant of his guilt.

Lastly, the Court concluded that it did not appear that there was no penetration in course of the appellant forcing himself on the victim.

Since the victim was a minor and since the appellant confessed that he lost control over himself and committed the offence, the punishment awarded to the appellant did not appear to be out of place.

In view of the above, the criminal appeal failed.[Cheerfulson Snaitang v. State of Meghalaya, 2022 SCC OnLine Megh 52, decided on 14-3-2022]

Advocates before the Court:

For the Petitioner/Appellant(s) : Mr. SD Upadhaya, Legal Aid Counsel

For the Respondent(s) : Mr. S Sengupta, Addl.PP with Mr. AH Kharwanlang, GA

Op Eds OP. ED.

Rape or No Rape —That is the Question: An Analysis of Consent on the Basis of a Promise to Marry

While a Division Bench of the Delhi High Court is hearing a challenge to the constitutional validity of the law relating to marital rape, this article aspires to examine another aspect of rape: whether consensual sexual intercourse on a false promise to marry would amount to rape. As per the century-and-a-half old Penal Code1, “consent” or the lack of it is the cornerstone to classify copulation as rape. If one exists, the other disappears.2So, this piece examines the dichotomy in the judicial opinions on the subject.

Sections 375 to 3773 IPC define “sexual offences” and prescribe punishment too. As adverted to above, of pivotal importance for attracting these offences is whether there is wilful consent for the act. In the language of Section 3754 itself, the legislature has specified seven descriptive circumstances when the offence of rape occurs. Of course, consent obtained by threat or coercion or under intoxication cannot be considered consent given by free will. As is evident from a bare reading of the above seven circumstances mentioned in the provision, none of them can be considered “consent” by free will.

It was in Uday v. State of Karnataka[1], the Supreme Court had, for the first time, an occasion to consider the question whether consent given by a woman based on a promise to marry by the man would amount to rape. In that case, the woman and the man were in love with each other, and the woman had consented to sexual intercourse. It led to her pregnancy. While acquitting the accused, the Court held that the question whether consent was given on a misconception of fact was to be decided on a case-to-case basis; after examining several judgments of various High Courts, the Court in Uday6 has held:

It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code….

While thus holding, the Court has also noted that the issue whether the consent was free or not and the surrounding circumstances of the “consent” have to be examined on a case-to-case basis. The Court, in the end, holds:

25.… In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC7. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception….8

The Court, however, has not answered the question whether “misconception of fact” in Section 90 has to be restricted to circumstances spelt out in Section 375 and whether Section 90, too, applies to circumstances not enumerated in Section 375.9

Subsequently, in Deelip Singh v. State of Bihar10, the Court has also laid down the test whether at the very inception of his making the promise, the accused held out a false promise to secure the consent. The Court has noted that the phrase “against the will” seemed “to connote that the offending act was done despite resistance and opposition of the woman”.11 The Court has placed reliance on Section 90, and held:

The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirement of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person given the consent had given it under fear of injury or misconception of fact and the court should also be satisfied … of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.12

Neither in Uday13 nor in Deelip Singh14 was the consent obtained forcibly. Contrast this with Yedla Srinivasa Rao v. State of A.P.15In that case, the accused had intercourse with the victim forcibly. Then, after impregnating, he pacified her by promising marriage. The conviction was upheld, as the Court held that the intention was not honest from the beginning; he only promised to marry the prosecutrix when she became pregnant. The facts of this case are different to the extent that there was no consent for sexual intercourse; therefore, the circumstance mentioned as “firstly”—against her will—stood satisfied. Coercive element established, the Court ought not have even enquired into the existence of any promise or assurance to marry. It is non sequitur. Respectfully, it is submitted that Court has erred in holding:

In the present case, in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law….16

In Deepak Gulati v. State of Haryana17, the woman consented to sexual intercourse on the understanding that the accused would marry her, though “she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor”. On his conviction, the accused had served over three years of his sentence before the Supreme Court acquitted him. In that context, the Court has held:

Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understating the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.18

In Kaini Rajan v. State of Kerala19, the accused was acquitted on a reasonable doubt in the prosecution’s case. The Supreme Court has observed:

Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram20)

In Karthi v. State21, as was in Yedla Srinivasa Rao22, to the first instance of sexual intercourse, there was no consent. But later, the accused silenced the prosecutrix with a promise of marriage. Thereafter, several acts of intercourse took place—with her consent. In that backdrop, the Supreme Court has upheld the conviction for rape. Similarly, in State of U.P. v. Naushad23, the Court placed reliance on Section 90 and held:

In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her.

More recently, in Pramod SuryabhanPawar v. State of Maharashtra24, while acquitting the accused, the Supreme Court has summarised the law:

To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two proportions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the women’s decision to engage in the sexual act.

The law regarding “consent” has been followed in Anurag Soni v. State of Chhattisgarh25. In that case, the consent for sexual intercourse was found to be on “a misconception of fact” as understood under Section 90. From the beginning, as it emerged, the accused had no intention to marry the prosecutrix. While making his promise, the accused knew it to be a false one. In Dhruvaram Murlidhar Sonar v. State of Maharashtra26, while allowing the appeal, the Supreme Court has examined the law on the subject and held:

Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by the accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant (sic) had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC27.

Even in Maheshwar Tigga v. State of Jharkhand28, the Supreme Court adhered to the law laid down from Uday29 onwards. But in the facts and circumstances of that case, the Court has held that “the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her….”30 As a result, the accused was acquitted. More recently, in Sonu v. State of U.P.31, the Supreme Court quashed an FIR, on the ground that:

(t)here is no allegation to the effect that the promise to marry was given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR.32

Thus, for almost two decades, the law has consistently been that a consent given for sexual intercourse on a false promise to marry would be a consent given on the “misconception of fact” and hence, does not amount to valid consent under Section 90. In other words, it amounts to rape. The Court, in all the above quoted judgments, has not considered Explanation 2 to Section 375, which reads as under:

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.33

Put plainly, “consent” must unequivocally be for the sexual act, and the basis for the consent is not relevant for the purpose of the section. Further, the word “fact” in Section 90, of which there must be a “misconception”, ought to be of the sexual act, and not some other circumstance or fact. That is, for the offence not to be attracted, the sexual act must be consented to. Indeed, the Court has recognised in KainiRajan34 that “consent” was “an act of reason coupled with deliberation” and that it denotes “an active will in the mind of a person to permit the doing of an act complained of”.35

In our respectful view, if there is free and unequivocal consent for the sexual act—in the absence of any specific legislative mandate—the basis for such free and unequivocal consent, such as a promise to marry, is irrelevant. The intent of the legislature is clear from the second explanation. With utmost respect, when the provision categorically enumerates situations in which consent obtained under either threat or coercion as being no consent, and the section having categorically left out conditional consent, it cannot be said that consent obtained on a promise to marry is not free consent. What is germane to Section 375 is whether there is consent by free will for sexual intercourse, and such consent is not obtained from a girl of less than 18 years of age or such consent is not obtained by threat, coercion or intoxication. When none of these factors are directly attracted, and a consent is given on “promise to marry”, it can hardly be said that such consent is not consent by free will.

For example, in R. v. Flattery36, a nineteen-year-old girl consulted the accused, a doctor, for treatment for an illness. And the accused, on the pretext of giving her surgical treatment, had carnal intercourse. The victim having submitted herself on the genuine belief that she was being treated, the accused was held guilty of rape. Similarly, in R. v. Williams37, when the accused, who was engaged by the victim to give her lessons in singing, had sexual intercourse with the victim on the pretext that he had to perform an operation on her to produce her voice properly. Thus, the victim having submitted herself on this premise but without any intention of having sexual intercourse, the King’s Bench upheld the conviction of rape. In Williams38, the King’s Bench Court placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:

…Branson, J. stated the law in the course of the summing up in the present case in accurate terms. He said: “The law has laid it down that where a girl’s consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was a surgical operation.40

In other words, only when the consent is given for an act, which the consent giver is not knowing to be a sexual act, can the offence of rape be attracted. Such a consent would fall within the ambit of “misconception of fact” even under Section 90 IPC. It is settled law that a criminal statute must be interpreted in a strict manner, and, it is submitted, the law laid down by the Supreme Court regarding “the consent for sexual intercourse on a false promise to marry” as attracting the offence of rape would amount to reading words into the statute—words that do not exist.

Recently, two High Courts, while taking a completely contrary stand on the issue, have expressed a need for the legislature to clarify the issue. The Allahabad High Court, in Harshvardhan Yadav v. State of U.P.41, has noted that till the legislature provides for “a clear and specific legal framework where the accused obtained consent for sexual intercourse on the false promise of marriage”, the Court should continue to give protection “to such women who have suffered on account of false promise of marriage”.42 Conversely, the Orissa High Court in G. Achyut Kumar v. State of Odisha43, while hearing an application for bail, has opined that “the automatic extension of provision of Section 90 IPC to determine the effect of a consent under Section 375 deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous”.44

It is submitted that intertwining consent for intercourse with marriage may not reflect the change in societal attitude. In the present day and age, the law recognises a “relationship in the nature of marriage”45 —colloquially called a live-in relationship. It was once frowned upon as morally decadent. O tempora, o mores! So, the interpretation given by the Supreme Court, with marching times and changing social mores, requires a reconsideration. From Uday46 to Sonu47, the law on this aspect has stood like a rock—fossilised, so to say. In an appropriate case, the Supreme Court must revisit the purport of “misconception of fact” in Section 90 for the offence of rape.

*Advocate on Record, Supreme Court of India.

**Advocate on Record, Supreme Court of India. Author can be reached at amitpaioffice@gmail.com.

1 Penal Code, 1860.

2This would not apply to “consent” by a girl less than 18 years of age.

3 Penal Code, 1860, Ss. 375-377.

4 Penal Code, S. 375.

[1](2003) 4 SCC 46.

6 (2003) 4 SCC 46, 56-57.

7 Penal Code, 1860, S. 90.

8 Uday v. State of Karnataka, (2003) 4 SCC 46, 58.

9 Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.

10 (2005) 1 SCC 88.

11 Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.

12 Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.

13 (2003) 4 SCC 46.

14 (2005) 1 SCC 88.

15 (2006) 11 SCC 615.

16 Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624.

17 (2013) 7 SCC 675.

18 Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, 682.

19 (2013) 9 SCC 113, 118.

20 (2000) 7 SCC 224.

21 (2013) 12 SCC 710.

22 (2006) 11 SCC 615.

23 (2013) 16 SCC 651, 658.

24 (2019) 9 SCC 608, 620.

25 (2019) 13 SCC 1.

26 (2019) 18 SCC 191, 202.

27 Penal Code, 1860, S. 376.

28 (2020) 10 SCC 108.

29 (2003) 4 SCC 46.

30 Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117,para 20.

31 2021 SCC OnLine SC 181.

32 Sonu v. State of U.P., 2021 SCC OnLine SC 181.

33 Penal Code, 1860, Expln. 2 to S. 375.

34 (2013) 9 SCC 113.

35 KainiRajan v. State of Kerala, (2013) 9 SCC 113, 118.

36 (1877) 2 QBD 410.

37 (1923) 1 KB 340.

38 (1923) 1 KB 340.

39 (1877) 14 Cox, C.C. 8.

40 See R. v. Williams, (1923) 1 KB 340, 347.

41 2021 SCC OnLine All 500.

42 Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.

43 2020 SCC OnLine Ori 417.

44 G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.

45 See, Protection of Women from Domestic Violence Act, 2005.

46 (2003) 4 SCC 46.

47 2021 SCC OnLine SC 181.

Case Briefs High Courts

Trespassed in house, committed rape, misappropriated money, threatened: Kerala HC denied pre-arrest bail in view of such allegations

Kerala High Court: Shircy V. J., dismissed a bail application wherein a man committed rape with a woman and misappropriated her money after putting her under threat.

An application for pre-arrest bail was filed, wherein the petitioner was accused of offences punishable under Sections 376, 406, 323 and 506(i) of the Penal Code, 1860.

Prosecution alleged that a petitioner who was the neighbour of the de facto complainant and friend of the husband of de facto complainant had trespassed into her residential house and committed rape on her and thereafter he threatened her not to divulge the same and committed the very same offence on certain days and he had also taken her ATM card and withdrawn money from her account sent by her husband who was working abroad and misappropriated the same.

By putting her under threat, he misappropriated an amount of Rs 15 lakhs.

Analysis, Law and Decision

High Court noted that the petitioner who is a neighbour and a friend of the husband of the defacto complainant exploited the situation and misappropriated her money and also subjected to rape after putting her under threat.

Bench stated that the investigating agency has to go deep into the allegations levelled against the petitioner. Hence, if the pre-arrest bail was granted, it would definitely affect the investigation of the case adversely and he would also get a chance to abscond and influence the witness of the prosecution.

Therefore, pre-arrest was declined. [Sujeesh v. State of Kerala, 2021 SCC OnLine Ker 9605, decided on 1-3-2021]

Advocates before the Court:

For the Petitioner: Sri Rajan Varghese K., Advocate

For the Respondent: By Public Prosecutor

Analysis, Law and Decision

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Kamini Sharma, Editorial Assistant has put this report together

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Let’s break it down

Justice C. Harishankar’s Opinion

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Whether or not Exception 2 Section 375 of the Penal Code, 1860 should remain on the statute?

Remarks before pronouncing the ruling

Whether Marital Rape Exception should be struck down?

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

Conclusion

Justice C. Hari Shankar’s Opinion

Conclusion

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Suchita Shukla, Editorial Assistant has reported this brief.

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Suchita Shukla, Editorial Assistant has reported this brief.

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Factual Background

Analysis, Law and Decision

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Background

Analysis and Decision

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Suchita Shukla, Editorial Assistant has reported this brief.

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Analysis, Law and Decision

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