Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. allowed the petition filed by the husband and directed the Court of Judicial Magistrate First Class to stop all the proceedings against him under Section 376 of the Penal Code, 1860.

In the present case, the petitioner and the first respondent were in love with each other and petitioner had promised to marry her. Respondent had sexual intercourse with the petitioner on the basis of the promise of marriage. When the petitioner took her to the house of his relatives, they threatened her. Apprehending that they would harm her she escaped and reported the matter to police and charges under Section 376 of Penal Code, 1860 were set against him. After a short time span, both petitioner and respondent solemnized their marriage under the Special Marriage Act, 1954. Petitioner sought to set aside the proceedings against him by invoking power of the Court under Section 482 of the Code of Criminal Procedure, 1973.

The main question to be considered by the Court was whether the marriage between the accused and the victim can be considered as a sufficient ground to quash the prosecution proceedings against the petitioner.

The respondent submitted that she had no grievance against the petitioner and no objection in setting aside the proceeding against him. In the affidavit filed by the respondent she had stated that she was forced to sign the first information statement at the instance of her mother and other relatives and that she had no intention to implicate the petitioner in a case of rape.

The Court placed relevance on Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509 where the principle was laid that if it was found that from the inception the accused had promised the prosecutrix to marry her without any intention to marry and the consent for sexual intercourse was based on such promise then such consent could be said to be obtained on a misconception of fact as per Section 90 of IPC. It was also acknowledged that consensual physical relationship between the parties would not constitute an offence punishable under Section 376 of IPC and it must be carefully examined that whether the accused had actually wanted to marry the victim or had made a false promise of marriage only to satisfy his lust.

It was noted that in the present case, the petitioner had no fraudulent intention in promising marriage to the respondent. The promise made by him was not a false promise made only with the intention to satisfy his lust. This was evident from the fact that he married the victim lady within a short period after the incident.

Considering all the facts and circumstances it was a fit case for exercising jurisdiction under Section 482 CrPC, and proceedings against petitioner were set aside.[Denu P. Thampi v. X, 2019 SCC OnLine Ker 1639, decided on 27-05-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Sanjay Kumar Gupta, J. allowed a petition seeking protection, filed by a couple who performed inter-caste marriage.

The petitioners out of their free will and consent executed a marriage agreement duly attested by notary. They also married as per Hindu rites and customs at Arya Samaj Janipur, Jammu. As per the affidavit filed by them, it was evident that they were major at the time they solemnized the marriage. Father of the girl (Respondent 5) was vehemently opposed to their marriage; and he harassed and threatened to kill them. This led the petitioners to restrict their movement and being aggrieved, they filed the instant petition.

The Court relied on Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 368 to hold that right to marry a person of one’s choice is an integral aspect of Article 21 of the Constitution of India. Reliance was further placed on Lata Singh v. State of U.P., (2006) 5 SCC 475, wherein the Apex Court directed that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law”.

In view of the above, this petition was allowed and official respondent’s 1 to 4 were directed to ensure adequate protection of lives and liberty of the petitioners.[Simran Choudhary v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 404, Order dated 01-05-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy and A.K. Jayasankaran Nambiar. JJ. dismissed a writ appeal filed by landlord against an order dispensing with the requirement of his consent, for renewal of his tenant’s trade licence.

A partnership firm (tenant) – Vijaya Jyothi Traders ­– had filed an application before the Thrissur Municipal Corporation for a D&O (Dangerous & Offensive) licence. The Corporation refused to consider this application on the ground that the application was not supported by landlord’s (appellant herein) consent which was the mandate under Sections 492(3) and 492(4) of the Kerala Municipality Act, 1994.

In a petition filed by the managing partner of the firm (respondent herein), it was averred that averred that since there were some disputes between him and the appellant-landlord, therefore obtaining consent letter from the landlord must not be insisted for consideration of the renewal of the licence. Learned Single judge allowed the petition and directed the Corporation to consider the subject application without insisting for consent from the appellant-landlord. Aggrieved thereby, the instant writ appeal was filed.

The Court noted that the learned Single Judge had taken note of pending suits between the landlord and tenant and had also provided an opportunity of hearing to both the parties. It relied on the judgment in Sudhakaran v. Corporation of Trivandrum, (2016) 14 SCC 263 where the Apex Court while deciding the on renewal of trade licence, stated that a tenant could not be deprived of running a lawful business merely because the landlord withheld his consent. A valid tenancy has implied the authority of the landlord for the legitimate use of the premises by the tenant.

In view of the above, the Court upheld the impugned judgment. [C.S. Babu v. C. Vijayan, 2018 SCC OnLine Ker 5783, Order dated 14-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Gita Mittal, CJ and Tashi Rabstan, J. dismissed the application filed to assail the decision passed by the Trial Court wherein the respondent was acquitted of the charges under Sections 376, 363 and 344 of the RPC for wrongfully restraining and raping the prosecutrix for several days.

The facts of the case are that an application was moved by the father of the prosecutrix alleging that his daughter referred to as the ‘prosecutrix’ was kidnapped by someone on 3-12-2015 and that she could not be traced. The prosecutrix was alleged to have been recovered on 15-12-2015 from a bus stand. The respondent was arrested in the matter based on the statement made by the prosecutrix. The case came before the Trial Court wherein it was held that the prosecutrix was aged between 18 to 20 years on the date of the offence and not a minor and hence the aspect of kidnapping from the custody of the lawful guardian, as was envisaged under Section 363 of the RPC, was not made out. The Trail Court thus acquitted the respondent of the first charge.  The second charge which was laid against the respondent was a commission of offences under Section 344 of the RPC with regard to the unlawful confinement of the prosecutrix for ten or more days and under Section 376 RPC for having raped her during this period. The Trial Court considered the entire evidence and found that the prosecutrix was in active contact of the respondent from September, 2015 and that she voluntarily left her home in his company to go with him on  3-12-2015 with her documents. Marriage was the solemnized. The applicant was acquitted since consent was shown.

The Court dismissed the appeal upholding the settled law that the appellate Court will not lightly interfere with the judgment of acquittal. [State v. Rajinder Paul Singh, 2019 SCC OnLine J&K 77, Order dated 30-01-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of S.C. Gupte, J. while addressing an arbitration petition challenging the award passed by a sole arbitrator, noted the points of evidence asserted by the sole arbitrator and dismissed the petition.

In the present petition, the crux of the issue involved an agreement for manufacturing of the petitioner’s liquor products. The particular agreement was between the petitioner (who was the respondent to the reference) and the respondent (who was the claimant before the arbitral forum) inter alia engaging services of respondent for manufacture, on a priority basis of various liquor products of the petitioner in the State of Maharashtra.

Respondent stated in his points of contentions that in a meeting held between the representatives of the parties, it was agreed that bottling charges would be increased by Rs 10 per case. Claimant had sent out an e-mail with a letter requesting the petitioner to confirm the minutes of the meeting held for which no response from the petitioner was received. Further, it was stated that though respondent did not receive any written communication from the petitioner, respondent, with consent from the petitioner, went on adjusting from jointly operated account payments towards bottling charges at the rate of Rs 40 per case.

Petitioner in his behalf placed that, a sum of Rs 40,46,165.87 was due and payable by the petitioner to the respondent after the payments adjusted. Further, for the said amount, it was agreed between the petitioner and the respondent that the petitioner would pay the same in four installments which never got fulfilled.

A legal notice was sent to the petitioner regarding the above stated and thereafter present reference was filed.

Learned sole arbitrator while giving its award held that the petitioner had failed to pay the agreed amount and as a result, awarded a sum of Rs 64,08,685.82, comprising of the principal amount as stated above along with interest. The said award has been challenged under Section 34 of the Arbitration and Conciliation Act, 1996.

While concluding the decision, the bench stated that the oral agreement was consistently acted upon by the parties for a long period of time. “Whatever view the Court may take of an oral modification clause generally or in the particular case we are concerned with, the mandate of challenge to the court under Section 34 of the Act is to see whether the view taken by the arbitrator, even if it be on a question of law or its application to the facts of the case, is a possible view or view which a fair and judiciously minded person could well take.” Therefore, the view taken by the arbitrator could well be said to be a possible view and supported by evidence. The view must pass muster under Section 34 of the Act.

Thus, the challenge to the impugned award had no merit and the petition was accordingly dismissed. [John Distilleries (P) Ltd. v. Brihan Maharashtra Sugar Syndicate Ltd., 2019 SCC OnLine Bom 67, dated 14-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench of Rajbir Sehrawat, J., dismissed the three petitions which were addressed together involving similar facts but involvement of different cheques and different complaints/proceedings thereunder.

Facts of the case were that petitioner was required to pay certain amount as a result of a settlement between the parties. For the same, petitioner had issued cheque which was dishonoured by the bank and further proceedings under Section 138 of Negotiable Instrument Act, 1881 was carried out resulting into the filing of complaint by respondent. During the pendency of the complaint, the petitioner filed applications for compounding of offences. On refusal to compound the offence by the complainant, the trial court had dismissed the applications. This petition challenged the trial court’s order and prayed for quashing of complaint and summoning order.

The issue before the High Court was to see if the application filed by the petitioner for compounding of the offence under Section 138 could be allowed without complainant’s consent.

The High Court was of the view that the requirement of consent of complainant as a basic ingredient for compounding of offences cannot be dispensed with. Thus, the trial court was right in rejecting the application for compounding of offences on the ground that complainant had not consented for the same. In respect to the prayer of quashing of complaint and summoning order, Court found no factual or legal basis to grant the same. [Anant Tools (Unit No.II) (P) Ltd v. Anant Tools (P) Ltd., 2018 SCC OnLine P&H 1723, decided on 20-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. allowed an appeal filed by the appellant against of the order of the trial court whereby he was convicted under Section 376 IPC.

The prosecution case was that the appellant had committed rape on the prosecutrix on the false pretext of marrying her. It was alleged that after the first occasion of sexual intercourse, the appellant promised to marry the prosecutrix to which she consented. Thereafter, as admitted by the prosecutrix, they remained in a love affair for 1 and half years where they cohabitated regularly. The prosecutrix had intercourse with the appellant on various occasions of her own free will. 15 days prior the complaint, they also tried to fly away but were caught by the mother of the prosecutrix. It was proved that the prosecutrix became pregnant and gave birth to appellant’s child. It was alleged that the appellant finally refused to marry her. Thus, the complaint was filed and the appellant was convicted as aforementioned.

The High Court perused the record and found that after the mother of the prosecutrix came to know about the affair on the night when the appellant and prosecutrix attempted to flee, she talked to appellant’s father. His father, however, refused to give consent to their marriage. The Court observed that the trial court ignored the fact that the prosecutrix continued to have sexual intercourse with the appellant of her own free will. It was never proved that the appellant, on the first occasion, did not intend to marry her. It was only the father of appellant who refused to accept her as the daughter-in-law. Consent of the prosecutrix for voluntary sexual intercourse, in this case, was obtained neither by fraud nor on a misconception of facts. Holding thus, the High Court set aside the order of the trial court and acquitted the appellant. The appeal was, thus, allowed. [Kalam Sk. v. State of W.B.,2018 SCC OnLine Cal 6548, decided on 20-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed a criminal appeal filed against the order of the trial court wherein the appellant was convicted for the offences punishable under Sections 363, 366, 342 and 376 IPC.

The appellant-accused was alleged to have kidnapped the prosecutrix and raped her due to which she became pregnant. It was alleged by the prosecutrix that she was below the age of 16 years in 2012 when she was kidnapped by the appellant. It was the case of the prosecution that the appellant was known to the family of the prosecutrix; he kidnapped her and committed rape on her. The appellant denied the charges. He was, however, convicted by the trial court as aforementioned. Aggrieved thus, the appellant filed the present appeal.

The High Court perused the record and found that according to the medical report, she had sexual intercourse even earlier to the alleged kidnapping. Furthermore, as per the defence witness Onkar Singh, Head Master of the school where the prosecutrix was first admitted, prosecutrix’ date of birth was 1-9-1995. This meant that she was more than 16 years of age at the time of the alleged incident. Therefore, as per the law in force at the time of alleged incident, the prosecutrix was capable of consenting to sexual intercourse. The prosecutrix stated that she came to know of her pregnancy in March 2012; whereas, the medical report proved that the foetus was conceived only in April. In such facts and circumstances, the Court was of the view that the defence taken by the appellant that he was falsely implicated in the case by the father of the prosecutrix on coming to know of her pregnancy was a plausible defence. The case put forth by the complainant-father was held to be a cooked up story. Resultantly, the appeal was allowed; the order impugned was set aside, and the appellant was acquitted of the charges as framed. [Jitender Singh v. State (NCT of Delhi),2018 SCC OnLine Del 10632, dated 17-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. allowed an appeal filed under Section 28 of Hindu Marriage Act, 1955 against the judgment of the Additional District Judge whereby the divorce petition filed by the husband was dismissed.

One of the grounds claimed by the husband as an instance of cruelty meted out by the wife was that she filed false complaints against him under Sections 406 and 498-A IPC. It is pertinent to note that the appellant-husband was acquitted of both the charges and no appeal was filed thereagainst by the wife. The husband filed a petition for divorce under Section 13(1)(ia) and (ib) of the HMA which was dismissed by the Additional District Judge. The wife submitted that she would consent to a decree for dissolution of marriage only if the husband agrees to her other demands. Aggrieved thus, the husband preferred the instant appeal.

The High Court perused the record and took notice of the complaint made by the wife against the husband and also the order of acquittal passed in his favour. Reference was also made to Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288 and Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105. The Court found that the complaints filed by the wife were false. It was held that the conduct of wife of using her consent to dissolution of marriage by a decree of divorce, to gain an advantage in other litigation, also constitutes cruelty. It shows that the respondent wife also was not interested in matrimonial bond but still wanted to keep the husband bound therewith, till he agrees to her other demands. In the aforesaid state of affairs, the appeals were allowed and the marriage between the parties was dissolved. [Daulat Ram Gupta v. Usha Gupta,2018 SCC OnLine Del 10376, dated 30-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench at Goa comprising of C.V. Bhadang, J., confirmed the decree of dissolution of marriage between the parties passed by Court of Queen’s Bench of Alberta, Calgary, Canada.

An application under Article 1102 of the  Portuguese Civil Code was filed seeking the confirmation of the abovesaid decree of the abovementioned Court. A perusal of the Certificate of Divorce issued by the competent court showed that the marriage between the parties was dissolved. It was evident from the Separation Agreement that the dissolution was by consent of parties.

The High Court reiterated the requirements for confirmation  of such a decree, which included:

  • Authenticity of the judgment as well as the correctness of the reasoning;
  • Judgment of foreign court having become res judicata according to the law of the country;
  • Judgment being delivered by a court of competent jurisdiction;
  • Dispute between the parties not being subject to defences of lis pendens or res judicata.
  • Defendant having been duly summoned;
  • Judgment not going against the Portuguese public order; and
  • Judgment having been delivered not in violation of any of the Portuguese Private Law.

The Court held that the requirements as listed above were satisfied in the instant case. The application was, thus, allowed. [Joaquim Cardozo v. Fanny Margaret Mascarenhas E. Cardozo, 2018 SCC OnLine Bom 1830, dated 26-07-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Dipak Misra, C.J. and A.M. Khanwilkar and D.Y. Chandrachud, JJ. upheld the bail granted to a rape offender by the Hon’ble Hyderabad High Court.

In the present petition, the learned bench of the Supreme Court Judges by emphasising on the essence of “consent” in a sexual relationship heard the contentions of the parties and arrived on a decision. The accused was charged under Sections 376, 342, 493, 506 and 354 (C) of the Indian Penal Code for which he was granted anticipatory bail by the sessions judge which was further cancelled on the ground that the accused had hidden the fact of his involvement in the 2G Spectrum case and the stated order was affirmed by the High Court.

The High Court on receipt of the bail application filed by the accused had granted bail with a bond of Rs. 50,000.  For the granted bail, the learned counsel of the appellant submitted that the allegations on the accused were of grave nature involving rape of an aspiring actress and on filing a complaint in that regard, she came across a large number of threats at her end in order to withdraw the filed complaint.

On considering the submissions of the parties, Supreme Court agreed and found “no fault” on the part of  the High Court in granting anticipatory bail to the accused as the ground of the complainant in the issue was of rape, though it had been noted that the complainant had visited the accused on her own will which lead the Court towards the “consensual” relationship between the complainant and the accused. Therefore, the Supreme Court without making any further delay in the present case stated that bail once granted should not be cancelled unless or a cogent case based on a supervening event is being made out. Further, bail granted was not cancelled, though the bond was modified to Rs. 10 lakhs. [X v. State of Telangana,2018 SCC OnLine SC 549, decided on 17-05-2018]

Case BriefsHigh Courts

Allahabad High Court: An appeal filed by the wife against the decree of divorce by mutual consent, was allowed by a Division Bench comprising of Pankaj Mithal and Rajiv Joshi, JJ.

A decree was passed by the family court under Section 13-B of Hindu Marriage Act (HMA), 1955 for dissolution of the marriage of the appellant-wife and her husband by mutual consent. The wife preferred the appeal under Section 28 HMA read with Section 19 of Family Courts Act 1984, against the said decree contending that her consent was obtained by undue influence. The question before the Court was ‘whether an appeal under Section 19 of Family Courts Act would lie against a decree passed under Section 13-B HMA?’

The Court perused Section 13-B and held that a decree of divorce by mutual consent could be passed by the Court only if all the conditions mentioned under the said Section are complied with. The Court referred to Section 23(1) (bb) and relying on Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, held that before passing a decree under Section 13-B, the Court must satisfy itself that the consent of the parties was not obtained by coercion, fraud or undue influence. Further, Section 28 HMA did not place any rider on appeals against a consent decree under the Act. In light of the discussion as mentioned herein, the Court admitted the appeal and directed the issuing of notice to the respondent. [Pooja v. Vijay Chaitanya,  2018 SCC OnLine All 513, dated 06-04-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench comprising of Sushil Kumar Palo, J. dismissed a petition after observing the factual and legal aspects, while referring to the essence of Sections 90 and 375 IPC.

The petitioner had been in contact with the prosecutrix through the social media platform “Facebook” since 2013, and eventually, the petitioner asked her to marry him. Rajeev Sharma, the petitioner, had after the fixation of marriage asked the prosecutrix for a physical relationship on the pretext of marriage. Once the marriage was fixed and physical relationship established between the two, he fled away right before the marriage was to take place. The complainant after a few months received a call from Rajeev Sharma asking her to come to Delhi and get married there.

On recording the above-stated facts and circumstances of the case, it is clear that the only want of the petitioner was to satisfy his lust which constitutes rape in this case, as the petitioner had promised marriage to the complainant but did not fulfill it. The Court, further taking an instance from the case State of U.P. v. Naushad, (2013) 16 SCC 651 observed that the consent in the present case was not “voluntary”, it was under the misconception of fact which certainly amounts to “rape”. The Court also concluded that the petitioner invaded the prosecutrix’s person by indulging in sexual intercourse in order to appease his lust. [Rajeev Sharma v. State of M.P.,2018 SCC OnLine MP 355, dated 27.04.2018]

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Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ refused to interfere with the provisions of the Hindu Marriage Act, 1955 when a 26-year-old Karnataka woman sought direction to make prior consent of a boy or a girl mandatory before marriage under the Hindu Marriage Act. The Court said that the concept of consent is already present in the Act and it does not warrant the interference of the Court. The bench observed that the Section 12C of the Hindu Marriage Act provides for annulment of marriage if there is forced or fraudulent consent.

The woman, who is the daughter of a Karnataka politician had fled to Delhi from her wedding ceremony as she did not approve of the marriage. The Court said that it would treat this petition as a habeas corpus plea and would not deal with the constitutionality of certain provisions of the Act as sought by senior advocate Indira Jaising, who was representing the aggrieved woman.

Though the Court refused pass the directions sought by the woman, it asked the Police to provide security to her. The court directed the superintendent of police concerned to serve notice on the respondents and fixed the matter for further hearing on 5 May.

Source: ANI

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench of Budihal R.B., J. held that the consent of a girl aged 14 years, for sexual intercourse, is immaterial and the POCSO Act classifies it as a rape.

The petitioner-accused was charged for offences punishable under Sections 363, 366 (A), 376(2) of IPC and also under Section 6 of POCSO Act. Learned counsel for the petitioner submitted that the statement of the victim girl recorded under Section 164 of CrPC itself says that she was in love with the petitioner, her family members were not supporting her so she herself left the house and went with the petitioner, and she had sexual intercourse with the petitioner out of her own free will and volition. In view of her statement, the counsel submitted that, there was no prima facie material against the petitioner and hence he may be enlarged on bail.

The Court perused the submissions made on behalf of the parties and the statement of the victim recorded under Section 164 CrPC, and found that the victim girl was 14 years old. She went along and stayed with the petitioner for one week and had sexual intercourse with him. The High Court was of the opinion that even if the girl aged 14 years consented to sexual intercourse, the consent was immaterial. It was a rape. There was a prima facie case against the petitioner. Accordingly, the Court declined to exercise discretion in favor of the petitioner and the petition was rejected. [Premkumar H.M @ Swamy v. State of Karnataka, 2017 SCC OnLine Kar 2447, dated October 9, 2017]

Case BriefsHigh Courts

Allahabad High Court: The Court observed that a child can be given in adoption by a parent if the other parent has abandoned the child and failed to fulfil all his duties as a parent.

The case before the Court was that the mother, who had remarried after her divorce, wished to give the child in adoption to her new husband. Since the father of the child was still alive and had not expressed consent for the adoption of the child, the District Court did not allow such adoption.

The Court observed that the biological father of the child  has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights including the right of visitation. The Court reiterated that “if the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.”

The High Court observed that although Indian law does not vest the exclusive right of giving in adoption to any one parent, yet the renunciation of such child by the parent shall be taken into consideration while determining the matter at hand. If the father had refrained from performing his fatherly duties then the mother can be given permission to give the child in adoption to her new husband. However, it is to be noted that such permission can be granted only if the father has completely and unequivocally given up his rights on the child. The consent of the other parent can be done away with only if the parent has renounced the world and not the child alone. [Shweta Gupta v. Rahul Keshav Jadhao; 2017 SCC OnLine All 2289, decided on 04.10.2017]

 

Case BriefsHigh Courts

Delhi High Court:  Disposing of an appeal challenging the conviction and sentence under Sections 363, 366 and 376 of the Penal Code, 1860, the Court observed that “From the evidence on record, the prosecution has proved beyond reasonable doubt that the prosecutrix was of 13 years 9 months of age at the time of incident and Raju having allured and enticed the prosecutrix. Thus, her consent was immaterial for the reason she was a minor.”

In response to the appellant’s contention that since from the letters of the prosecutrix it is apparent that she was a consenting party having an affair with the appellant, the sentence of the appellant be reduced, the Court observed that “Section 376 IPC prior to the amendment carried out w.e.f. February 03, 2013, provided that the offence of rape of a woman under 16 years of age with or without her consent was punishable with imprisonment of not less than seven years but which may extend for life or for a term which may extend to ten years and payment of fine, provided, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years”.

The Court held that “Since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment however on the facts and circumstances of the case, the sentence of rigorous imprisonment for 10 years for offence punishable under Section 376 IPC and rigorous imprisonment for 7 years each for offences punishable under Sections 363 and 366 IPC is on the higher side.”

The Court observed that as per Section 376 IPC, the minimum sentence prescribed for the offence of rape of a minor below 16 years is 7 years and hence the sentence of the appellant cannot be reduced to the period already undergone. The appellant’s sentence was modified to 7 years’ RI for the offence punishable under Section 376 IPC with a fine of Rs 10,000 and in default of payment of fine to undergo simple imprisonment for one month,; 4 years’ RI for the offences under Sections 363 and 366 IPC with fine of Rs 2000, and in default of payment of fine to undergo simple imprisonment for one week on both counts. [Raju Kumar Verma @ Raju v. State (Govt. of NCT) of Delhi, 2016 SCC OnLine Del 2993, decided on May 17, 2016]

High Courts

Bombay High Court: Upholding the welfare of the child as the most important factor in a custody battle, a bench comprising of  Ranjit More and Anuja Prabhudessai, JJ shifted the custody of a young girl who had lived with her father for over seven years to her mother.The appellant had approached the Court to challenge a Family Court’s order rejecting her application seeking to modify the consent terms of her divorce. The women had handed over the custody of her daughter to her ex husband by mutual consent and moved to Denmark. The woman had complained that she was not allowed to meet her daughter regularly and that the father was trying to alienate her from her daughter.

The appellant subsequently wanted her daughter to join her in Denmark where she had migrated. The Court agreed to the request of the mother after it was pointed that the girl was anxious and emotional while in the father’s custody and wished to live with her mother. From the interactions with the child, the Court was satisfied that the child was mature enough to take such a difficult and painful decision of choosing between the two parents, both of whom she loved immensely and equally. The Court was satisfied that the decision of the child was not emotionally maneuvered but a conscious decision.

The Court also rejected the arguments of the father that uprooting the child from the local environment and compelling her to adjust to a foreign country, culture and education system would adversely impact her development and overall growth. The bench observed that young  children are more resilient than adults are and they learn and adapt quickly and find their own ways to cope with any new situation and surroundings. In the instance case, the child was at an age where she would have no difficulty in gelling with the new culture and country. The Court allowed the father to be in contact with the child through social networking or electronic media and to make regular visits.  Aakansha Roy Rasmussen vs. Adwait Anil Dixit, 2015 SCC OnLine Bom 558decided on 23-02-2015