Case BriefsHigh Courts

Kerala High Court: In an infamous case of sexual assault whereby the priest of the St. Sebastian Church had impregnated a minor girl, R. Narayana Pisharadi, J., upheld the conviction of the accused. The Bench, however, reduced the sentence of 20 years rigorous imprisonment awarded to the accused to 10 years rigorous imprisonment.

The appellant, a Vicar of St. Sebastian Church was indicted for committing the offences of penetrative sexual assault and rape on a teenage girl of the parish; consequently, the victim became pregnant and gave birth to a male child on 07-02-2017. The Trial Court convicted and sentenced the appellant for the offences punishable under Section 376(2)(f) of the Penal Code, 1860 and also under Section 3(a) read with Section 4 and Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act, 2012. The Trial Court had sentenced the accused to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.1,00,000.

In the instant appeal, the appellant contended that the sexual intercourse took place with full and unqualified consent of the victim. On cross-examination by the accused, the victim categorically stated that it was with her full consent that the accused made sexual intercourse with her and that she had got no complaint against the accused.

Noticing that the victim girl told the police that her own father had committed rape on her and that the father of her child was her own father, while the medical report had proved the accused was the father of the child and the paternity was admitted by the accused himself, the Bench observed,

“In the instant case, from the very beginning, there has been attempt on the part of the family of the victim to save the accused, who was the vicar of the local church, from the clutches of law.”

Whether the Victim was minor at the time of the incident?

According to the prosecution, the date of birth of the victim was 17-11-1999, following documents had been produced to prove juvenility of the victim at the time of the incident:

  • Extract of the birth register which is kept in the local authority (Ext.P14) and
  • Certified copy of the admission register maintained at the I.J.M Higher Secondary School, Kottiyoor.

Noticing that the age of the victim given in the church was during baptism was 17-11-1999, the Bench stated that the entry regarding the date of birth of the victim shown in the birth register, which was supported by the live birth report prepared at the hospital where the victim was born and also the evidence of the doctor who attended the delivery, proved beyond reasonable doubt that the date of birth of the victim was 17-11-1999 and not 17-11-1997.

Since the accused had made sexual intercourse with the victim in May, 2016 and the victim delivered the child on 07-02-2017, the Bench held that the victim was aged below 18 years and a child as defined under Section 2(d) of the POCSO Act, when the accused had sexual intercourse with her, that is, in May, 2016, therefore, the sexual act between the accused and the victim would not fall under the definition of consensual act. However, noticing that Section 376(2)(f) of IPC is attracted when a person who being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman, the Bench held that merely for the reason that the accused was the priest/vicar of the local church, it could not be found that he had held any position of trust or authority towards the victim.

Verdict

Consequently, the appeal was allowed in part and the Bench passed following orders:

  • Conviction of the accused under Section 376(2)(f) of the IPC was altered to conviction under Section 376(1).
  • Conviction of the accused under Section 3(a) read with Section 4 and under Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act was confirmed.
  • In supersession of the sentence awarded by the Trial Court for different offences, the accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000 and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence under Section 5(j)(ii) read with Section 6 of the POCSO Act. [Robin Mathew v. State of Kerala, Crl.A No. 401 of 2019, decided on 01-12-2021]

Appearance by:

Counsel for the Appellant: B.Raman Pillai (Sr.), R.Anil, M.Sunil kumar, K.John Sebastian, Sujesh Menon V.B., T.Anil Kumar, Thomas Abraham (Nilackappillil), E.Vijin Karthik, Thomas Sabu Vadakekut, Manju E.R. and Mahesh Bhanu.S

Counsel for the State: Ambika Devi S, Spl.Gp Atrocities Against Women & Children & Welfare Of W & C, Nandagopal S.Kurup, P.Chandrasekhar, Sandhya Raju, K.K.Mohamed Ravuf, Government Pleader, K.Vidya and Shri.Satheesh V.T.


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

United Kingdom Supreme Court: While expressing that, the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society, Bench of Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens and Lady Rose, JJ., laid down a very detailed decision on ‘consent’ with respect to sexual relations and the catch in the present matter was the diagnosis of autistic disorder of the appellant.

Issue

Present appeal raised issues of profound significance under the Mental Capacity Act 2005 for the appellant and others like him with impairment of, or a disturbance in the functioning of mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations.

Whether the information relevant to JB’s (appellant) decision to have sexual relations includes the fact that the other person must be able to consent and give and maintain consent throughout?

Factual Background

Appellant who was diagnosed with autistic spectrum disorder combined with impaired cognition expressed a strong desire to have a girlfriend and engage in sexual relations. His previous behaviour towards women-led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.

Questions to be considered:

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex?
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?

Analysis

The function of Section 27 of the Mental Capacity Act 2005 is to identify certain decisions which are so personal to the individual concerned that no one may take them on his behalf if he is unable to take them for himself.

Court added that,

Section 27 only makes clear that “where a court finds that a person lacks the capacity to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person’s behalf to any specific sexual encounter”.

Mr McKendrick sought to describe JB’s wish to initiate sexual relations as a desire rather than being a decision within Section 2(1) MCA.

To the above-stated, Bench expressed that a wish to initiate sexual relations can be described as a desire to do, but clearly a desire gives rise to a decision as to whether to fulfil that desire.

It may be helpful to observe that the terminology of a capacity to decide to “engage in” sexual relations embraces both (i) P’s capacity to consent to sexual relations initiated by the other party and (ii) P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.

 Decision

Evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to sexual activity and must in fact consent before and throughout the sexual activity.

Supreme Court opined that under Section 3(1)(a) MCA, JB should be able to understand that information and should be able to use or weigh it as part of the decision-making process.

In the present matter, JB was unable to make a decision for himself in relation to the stated matter because of an autistic impairment of his mind. Though, Court declined to make a final declaration that JB does not have the capacity to make a decision to engage in sexual relations.

Hence, the matter be remitted to the judge for reconsideration and the appeal was dismissed. [A Local Authority v. JB, [2021] UKSC 52, decided on 24-11-2021]


Advocates before the Court:

 Appellant

John McKendrick QC Ian P Brownhill Helen Law (Instructed by Enable Law)

Respondent

Vikram Sachdeva QC

Richard Whittam QC Alexander Ruck Keene
Fiona Paterson (Instructed by Wolferstans Solicitors)

1st Intervener (Respond) (written submissions only) Aswini Weereratne QC Sophy Miles Mary-Rachel McCabe Caragh Nimmo (Instructed by Irwin Mitchell)

2nd Intervener (Centre for Women’s Justice) (written submissions only)
Victoria Butler-Cole QC
Tim James-Matthews (Instructed by Centre for Women’s Justice)

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., held that passive submission made by the victim under unavoidable circumstances as she had no other option is not consent. While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

The appellant-accused had challenged the judgment of the Trial Court by which the accused was convicted for the offences under Sections 366A and 376 of the Penal Code, 1860 and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The prosecution case was that the victim girl, who was aged 17 years, had eloped with the accused, a bus cleaner in which the victim used to travel often. The victim contended that she was in love with the accused, who had induced her to elope with him and threatened her of committing suicide in front of her house if she did not go with him. The accused took her to Mysore; they stayed in a lodge where the accused committed forcible sexual intercourse with her. The medical report revealed that there was no evidence of recent sexual intercourse but there was evidence of past penetration.

Consent

“True, the victim has admitted that she was in love with the accused and that she knew that eloping with him would create problems. But, it does not mean that it was with her consent that the accused her to Mysore. Her evidence shows that he made a threat that if she did not go with him, he would commit suicide in front of her house.”

Considering the statement of the victim that the accused had forcibly undressed her and that when she cried he closed her mouth with his hand, the Bench opined that the testimony of the victim clearly showed that it was against her will and without her consent that the accused committed sexual intercourse with her. The Bench added,

“Even if it is assumed that, on subsequent occasions, she did not resist the act of the accused, it cannot be found that it was with her consent that the accused had sexual intercourse with her. It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option.”

Although, the prosecution failed to prove that the victim was minor at the time of the incident, the Bench opined that even if it was assumed that the victim was more than 18 years of age, it could not be a ground to hold that she was a consenting party to the sexual intercourse as helplessness in the face of inevitable compulsion could not be considered to be consent as understood in law.

Claim of Juvenility

The accused had produced the extract of the school admission register kept in the school in which the accused first attended, to substantiate his claim of juvenility. According to the said document, the date of birth of the accused was 12-08-1996, hence on the date of the incident the accused had completed seventeen years of age and he was below eighteen years. Therefore, as on the date of the alleged incident, the accused had completed seventeen years of age and he was below eighteen years.

Relying on Raju v. State of Haryana, (2019) 14 SCC 401, wherein the Supreme Court had ordered, “seeing that the appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, we direct that the appellant be released from custody forthwith, if he is not required to be detained in connection with any other case.”, the Bench held that since as per Section 15 of the JJ Act, 2000, the maximum punishment that can be imposed upon a juvenile is to direct that he shall be sent to a Special Home for a period not exceeding three years and the accused had already undergone imprisonment for more than six years, the accused need not be directed to appear before the J.J. Board for receiving sentence.

Conclusion

Consequently, the appeal was allowed in part and it was ordered as follows:

  1. Conviction of the accused for the offence punishable under Section 3 read with Section 4 of the POCSO Act was set aside.
  2. Conviction of the accused for the offence punishable under Section 366A of IPC was altered to conviction under Section 366.
  3. Conviction of the accused for the offence punishable under Section 376 of IPC was is affirmed.
  4. The sentence of imprisonment and fine imposed on the accused was set aside.

The accused was directed to be released from custody. [Syam Sivan v. State of Kerala, 2021 SCC OnLine Ker 4307, decided on 17-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Advocate George Renoy, State Brief

For the State: Advocate Ambika Devi S, Spl. PP

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., while upholding the decision of Special Judge elaborated on the Sections of POCSO Act in light of a minor being induced to be involved in the sex trade.

Instant appeal was filed under Section 374 of the Code of Criminal Procedure against the conviction of the appellants for offences punishable under Section 370 read with Section 34 of the Penal Code, 1860, under Section 5 and 6 of the Immoral Traffic Prevention Act (PITA) and under Section 4 read with Section 17 of Protection of Children from Sexual Offences Act (POCSO).

Appellants are mother and daughter.

PW 4 had received information that the appellants were running a brothel.

During the raid conducted, respondent 2 who was then 17 years of age was found in a room with constable Bahirwal. A specified denomination currency note of Rs 500/- was found in possession of the appellant 2. Five to six used condoms and 200 pieces of unused condoms in a packet were found.

Respondent 2 (victim) and appellants were taken to the Police Station for the offences punishable under Section 366A, 370 372 read with Section 34 of the Penal Code, 1860, Section 3, 4,5, 6 and 7 of the PITA and Section 12 and Section 4 read with Section 17 of the POCSO Act.

Further, appellants were acquitted of the offences punishable under Section 366A and 372 of the Penal Code, 1860, of Section 12 of the POCSO Act and Section 7 of the PITA.

Analysis, Law and Decision

Age of the Victim

 Bench observed that when there is ample evidence in the form of school record which duly stands corroborated by the medical age determination test, though the latter is only an approximation, the former being concrete is sufficient to determine and conclude, as has been rightly done by the Special Court that the victim was less than 16 years of age at the relevant time and was, therefore, a child under POCSO Act as also under the PITA.

It was also noted in view of the circumstances and evidence that the victim (PW 1) had apparently willingly succumbed to the sexual exploitation.

Further, at no point of time, the victim seemed to have made any attempt to escape.

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day. Not only this but even while narrating the history to the Medical Officer Dr Shahane (PW 6) she disclosed that she was willingly working as a sex worker for a month.

 On noting the fact that she was a child within the meaning of Section 2(d) of the POCSO Act and Section 2(aa) of the PITA, her consent became irrelevant, and it was not a consent in the eye of law.

In view of the provisions of Section 29 of the POCSO Act, a presumption regarding commission of the offences under the Act needed to be raised as has been rightly done by the Special Judge. Appellants miserably failed to displace the burden cast upon them.

Coming to the ingredients for the individual offences for which the appellants have been convicted, so far as Section 370 of the Penal Code is concerned, i.e. for trafficking of person, even if it is concluded that since Shantabai had not been arrayed as an accused and therefore there was no evidence in respect of actual sale by her and purchase by the appellants of the victim on overall appreciation of the evidence it is quite apparent that the victim was induced into trade for the obvious monetary gain which is nothing but a trafficking as defined in Clause Sixthly of Sub Section 1 of Section 370 of the IPC.

As per the provisions of Section 5 and 6 of PITA, the former punishes procurement or inducement or taking a person for the sake of prostitution whereas Section 6 is concerned obviously the victim (PW 1) was detained in the house of the appellants with intent that she may have sexual intercourse with the persons who were not her spouse which is sufficient to constitute the offence.

Turning to the offence punishable under Section 17 read with Section 4 of the POCSO Act, Section 17 provides for punishment for abetment of any offence under the POCSO Act. Whereas Section 4 provides for punishment for penetrative sexual assault. Section 3 defines penetrative sexual assault to mean the different acts provided for therein.

Since the victim was made to succumb to the penetrative sexual assault by various customers and the appellants had induced her into that trade, it could easily be concluded that they committed an offence punishable under Section 17 and were rightly convicted and sentenced by the Special Judge.

Therefore, no illegality was found in the impugned judgment and order convicting and sentencing the appellants.

In view of the above discussion, appeal was dismissed. [Sunita v. State of Maharashtra, 2021 SCC OnLine Bom 1631, decided on 9-08-2021]


Advocates before the Court:

Advocate for the Appellants: Mr Aniket Vagal.

APP for Respondent No. 1/State: Mr S. N. Morampalle.

Advocate for Respondent 2: Mrs Rashmi S. Kulkarni.

Op EdsOP. ED.

Introduction

The issue whether active euthanasia, suicide and assisted suicide should be legalised or not has been largely debated. Those who speak in favour of legalising them are those who believe in principle of autonomy. They believe that it should be person’s autonomous decision to decide on his death as it is the most intimate and fundamental part of life.[1] But those who are against it believe in principle of sanctity of life which is basically that every human life is valuable to only person himself but also to society and State. Therefore, they say that the State cannot make laws to legalise to allow anyone to take his own death or with the help of others.[2]

The Penal Code, 1860 (IPC) also prohibits these acts and provides punishment for them. The act of death by consent, which covers both voluntary euthanasia and assisted suicide, is carved out as an exception to murder in Exception 5 to Section 3003 IPC. This means that the offence of murder is reduced to culpable homicide not amounting to murder through this exception. There is not much development in the understanding and application of this exception. The reason can be that this is not used much by the defendants as this exception only helps to extenuate the culpability but does not exonerate them from the crime. Although this exception has not been analysed much by the courts, I believe it is important to visit this exception since there are problems which persist with regard to its application.

In this article, by looking at the ingredients and intention of the drafters of Exception 5, I will see how the courts have applied the exception in cases. I argue that the courts erred on the application of basic tenets this exception which is in assessment of “valid consent” and “pious motives” of the killer. I also suggest ways by which the application of Exception 5 can be bettered.

Ingredients of Exception 5

As per Section 300 IPC, Exception 5 has the following ingredients—

  1. The person whose death is caused should be above 18.
  2. That death should be caused by his own consent.

This simply means that the defendant who wants to take benefit of this section would require to prove that the deceased person was above 18 when he consented to his own death. Although this will not exempt the defendant party from punishment but there will certainly be reduction in the culpability of crime. The agreement between persons on killing is called “suicide pact”. Although there can be more than two persons in the suicide pact, usually there are two persons who have mutually agreed upon to end their lives. The defendant is the surviving party, who although killed the other party, was unable to kill himself for some reasons or circumstances that occur before or after such killing.

Drafter’s intention

It is important for us to understand the intention of drafters behind making such exception of murder to get nuanced understanding. The drafters paid much attention to the “motives” of the killer in these cases which according to them are “far more respectable” than in the usual murder case.4 Another justification that drafters give is that these cases “do not produce much evil and insecurity” in the society as the normal commission of murder does. These are the reasons why they found it inappropriate to term cases which fall under Exception 5 as murder.5  But since death of a human being causes “anxiety and alarm” in the society, they did not completely exonerate the offender.6 The drafters kept in mind that people in India commit suicide believing it as their religious duty or sometimes as a strong sense of honour. In such cases, the person assisting them to commit suicide cannot be imposed with same level of culpability as to a murderer. So, they found it appropriate to consider such cases as culpable homicide not amounting to murder.7

Application of Exception 5 in case laws and their analysis

As said before, there is not much development in interpretation and understanding of Exception 5 simply because it is not invoked much by the defendants. But there are few cases in which Exception 5 helped defendants to get their culpability reduced. While reading those cases, we need to give special attention on how courts ascertain the ingredient of consent as the other ingredient of age is a matter of fact.

There was an early case of Dasrath Paswan v. State of Bihar8 where accused was a student of Class 10 who had repeatedly failed at examination. He was upset with his results to the extent that he decided to end his life. When he conveyed his decision to his wife, she asked him to first kill her then kill himself. One fine morning when nobody was at home, accused killed his wife in pursuance of the suicide pact and after that he ran out of his house to kill himself. Before he could end his life, he was found by other villagers and later he confessed that he killed his wife. The matter was brought before Patna High Court and defence argued that they should be given benefit under Exception 5. There was no doubt regarding the age of the deceased as she was above 18 at the time of her death. For the assessment of consent, the Court found it significant that the body of the deceased was lying down and she did not make attempts to prevent assault. Looking at these circumstances, the Court found it appropriate to bring this case under Exception 5.

Another case, a more recent one is Narendra v. State of Rajasthan9 where the deceased was a married woman Nathi who left her home and residing in her parent’s home. There she developed intimacy with the accused Narendra and both wanted to marry. The villagers were against their wish of marriage because they belonged to same gotra. Both of them were very upset due to their love being not accepted by the villagers, therefore they agreed to commit suicide. One day the accused was seen inflicting injuries on deceased by other villagers but the victim had already died before they could rescue her. There were also stab wounds in the abdomen of accused but he was prevented from killing himself. The High Court found no material-on-record to show that there was free and voluntary consent of the deceased. Later this case reached in the Supreme Court where judges placed significance to facts like deceased did not raise alarm, there were also injuries on accused and he did not carry any weapon when he entered the house. Keeping these factual circumstances in mind, the Court ruled in favour of the deceased by giving him benefit under Exception 5.

I contend that the Court’s reasoning in both these cases falters on two very important limbs of this exception. First is ascertaining the “consent” of the victim. Second is looking at the “motives” of the killer.

The first contention is regarding assessment of “valid consent” of the deceased. Courts in both the above given cases reasoned ‘no resistance’ from the deceased side as one of the parameters to conclude that she had consented for her death. But how does the Court reach to the conclusion that there was “no resistance” in both the above given cases? Courts used the same standard to check presence of consent as they mostly use in rape cases — that the deceased did not shout, that there was no attempt to prevent herself from assault. Application of same kind of assessment standard in Exception 5 cases is problematic on two grounds. The first ground is that homicide cases are different from rape cases. Courts in rape cases look at medical reports to see if physical injuries are sustained by the victim. If there is no presence of injury marks that they believe that there was no resistance and conclude that there was consent of the victim.10 But this same enquiry cannot be done here because there is greater chance of presence of injuries in homicide cases as it because of these injuries that the victim has died. The courts in these cases did not expand much on of their reasoning as to how they reached this conclusion on “no resistance” hence consent even when there is definite presence of injuries on deceased. The second ground is that this standard of ascertaining consent by taking “shout” and “resistance” into consideration is criticised by many feminist scholars.11 The social and economic capital is often used by man to silent woman while committing crimes and it might not be always possible for her to shout and resist in such situations.12 Therefore, there is need to change the standard used by the courts and make sure that there was valid consent of the deceased in these cases.

My second contention is regarding the “motives” of the surviving party that the Court needs to ensure that they were “respectable” as were intended by the drafters. This can be done by looking at the intention of the killer in such cases — whether it was genuine or bogus when he agreed the suicide pact with deceased. If he did not want to kill himself but is entering into such pact just for killing the other person would completely obliterate the purpose of this exception. Another possibility arises if there is subsequent change of mind of killer after killing the deceased. These possibilities were contemplated by the drafters of Section 4 of the Homicide Act, 1957 in English Law and they can be summed up as follows—

  1. That the mere presence of suicide pact does not make it a genuine one, it may so happen that one party (deceased) honestly believed in the pact while agreeing while the other party just want to use it as a device as to bring about the death.13
  2. That both the parties have genuine intention to agree upon a suicide pact, there is a subsequent change of mind of the surviving party that they do not even attempt to commit suicide.14

Basically, the enquiry is to find out that that there were best motives of the killer when he entered into the suicide pact. In both of these possibilities, the offender does not fulfil the conditions as was agreed upon in the suicide pact. The drafters of this exception placed so much significance to the “pious motives” of the killer in these cases but there is clear absence of such motives if any of these two possibilities are present. Also, it is not just about the motives of the killer, the consent of the deceased is also vitiated if there is presence of these possibilities. Section 9015 IPC provides that the consent should be given without fear and misconception of fact. In these cases, the deceased party gives its consent to be killed believing that the other party also has genuine intention of committing suicide and would definitely kill himself. But if it so happens that the surviving party had no genuine intention to kill itself since the inception of suicide pact, as is contemplated in possibility 1 above, or if they change their mind, as contemplated in possibility 2, then such consent should be regarded to be given under misconception of fact. The fact based on which deceased gave consent was not untrue and hence that consent should be considered as vitiated under Section 90.

Section 4(3) of the Homicide Act makes it clear that the survivor needs to show that he had settled intention of dying.16 The same standard should be applied by Indian courts as well where it is for the defendant to show that he clearly had settled intention of dying in pursuance of suicide pact. It should be made onus on the party seeking benefit of this exception to prove there was absence of both above given possibilities. Therefore, I believe that if the Court finds presence of any of these possibilities, then that act should not be considered under Exception 5. The reason behind such rejection being, one, the drafters never wanted to give benefit if there are ill-motives of the surviving party and, two, because the consent of the deceased is vitiated.

Conclusion

It is understood that the understanding, application and assessment of Exception 5 in murder involves various aspects which the Court has failed to take into account while reasoning out. The challenging part to ascertain in Exception 5 cases is to ascertain the free and voluntary consent of the deceased. The courts have not been able to provide set standards on how to assess consent, especially when the victim is a woman. The courts should keep into mind the socio-economic capital that man holds which they can use to silent or influence woman. Therefore, the standard that there was no resistance hence woman consented should be done away. Also, the very reason why intention of the drafters reduced the culpability in such cases is because there are “pious motives” of killer so the courts should also do reasonable enquiry as suggested in this article. This would ensure that the benefit of Exception 5 is given with no injustice done to the victim and drafter’s intention.


3rd year law student at National Law School of India University, Bangalore, e-mail: <tusharagarwalswm@gmail.com>. I express my gratitude to Prof. Mrinal Satish (Professor of Law at NLSIU Bangalore) for his valuable inputs and feedback.

[1] Lawrence O. Gostin, The Constitutional Right to Die: Ethical Considerations, St. John’s Journal of Legal Commentary, Vol. 12, (1977): 602-603, accessed on 10-6-2021.

[2] Richard A. McCormick, The Quality of Life, the Sanctity of Life, The Hastings Center Report 8, No. 1 (1978): 30-36, accessed on 14-6-2021.

3 <http://www.scconline.com/DocumentLink/f7pL9l49>.

4 Reports from the Commissioners: Volume 28 Great Britain. Parliament. House of Commons (Jan 1848), pp. 53-54; para 282.

5 Ibid.

6 Ibid.

7 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, LexisNexis, sixth edition, p. 585.

8 1957 SCC OnLine Pat 129 : AIR 1958 Pat 190.

9 (2014) 10 SCC 248.

10 See Tukaram v. State of Maharashtra(1979) 2 SCC 143 : AIR 1979 SC 185 to look at assessment of court of consent.

11 Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar, An Open Letter to the Chief Justice of India, (1979) 4 SCC J-17.

12 G.S. Bajpai and Raghav Mendiratta, Gender Notions in Judgments of Rape Cases: Facing the Disturbing Reality, Supreme Court Cases (Journal) 60 JILI (2018) 298.

13 Maximilian Koessler, Comparative Aspects of the English Homicide Act of 1957, 25 Missouri Law Review 107 (1960), p. 142.

14 Ibid.

15 <http://www.scconline.com/DocumentLink/tfBf1vh5>.

16 S. 4(3), the Homicide Act, 1957.

Case BriefsHigh Courts

Kerala High Court: P.B.Suresh Kumar, J., invoked the doctrine of parens patriae to permit termination of eight weeks pregnancy of a medically unsound rape victim.

 The instant petition was filed by Kerala State Legal Services Authority espousing the cause of a hapless rape victim diagnosed with psychosis. The victim was found wandering within the limits of Kazhakoottam Police Station and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre.

The Medical Board at the Mental Health Centre found the victim to be pregnant, having gestation period corresponding to eight weeks as on 04-06-2021. As the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority and the writ petition was filed on that reference, seeking orders granting permission for medical termination of the pregnancy of the victim alleging that in terms of the provision contained in Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, the victim being a major, her consent was required for terminating the pregnancy, but the victim was not in a position to grant such consent for termination of the pregnancy.

Perusal of Certificate issued by the Medical Board indicated that the victim was suffering from mental retardation with psychosis and was under treatment as an inpatient. It was recited in the said Certificate that the victim was unable to take decision or communicate her opinion.

The report submitted by the Medical Board stated that though continuation of the pregnancy did not endanger the life of the victim, there was a high risk for the mother and baby, as the victim was on multiple anti-psychotic medication. Continuation of pregnancy was riskier than termination at that in view of expected maternal complications due to the present mental status. Therefore, the Medical Board opined that the patient required observation and detailed evaluation, so as to comment upon her mental status conclusively and also to assess the capacity to take decision on her own.

In the light of the provision contained in sub-section (2)(b)(i) of Section 3 of the Act, 1971 and Explanation 2 to the said sub-section, the Bench held that the pregnancy was one that could be terminated on the basis of the opinion of two medical practitioners. As noted, the impediment in the matter of terminating the pregnancy of the victim was that she was not in a position to give consent for the same.

Reliance was placed by the Court on Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein it was held that, “one among the said tests is the test of “best interests” which requires the court to ascertain the course of action which would serve the best interests of the person in question.”

Having regard to the fact that the person involved in the case was a rape victim and considering the opinion of the Medical Board, the Bench invoked the Hence, invoking the doctrine of parens patriae, to hold it was in the best interests of the person concerned to permit termination of her pregnancy. The writ petition was allowed and the respondents were permitted to terminate the pregnancy of the victim at the earliest, without insisting on the consent of the victim. However, considering that the person involved was a rape victim, the Bench passed further directions ordering respondents to take the tissue of the fetus and maintain the same for DNA examination.[Kerala State Legal Services Authority v. Union of India, WP(C) NO. 12278 of 2021, decided on 26-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsels for the Petitioners: K.P.Pradeep, T.T.Biju, T.Thasmi and M.J.Anoopa

Counsels for the Respondents: P.Vijayakumar, ASG and Initha B, Government Pleader

Case BriefsSupreme Court

Supreme Court: In a sequel to its earlier order directing winding up of six mutual fund schemes of Franklin Templeton Mutual Fund, a Division Bench of S. Abdul Nazeer and Sanjiv Khanna, JJ. ruled that the trustees are required to seek consent by majority of the unit holders, when they by majority decide to wind up a  mutual fund scheme. Also, consent by majority of the unit holders should be sought post-publication of the notice and disclosure of the reasons for winding up.

In its earlier order dated 12-2-2021 [Franklin Templeton Trustee Services (P) Ltd. v. Amruta Garg, 2021 SCC OnLine SC 88], the Supreme Court has allowed the winding up of six mutual fund schemes by Franklin Templeton Mutual Funds, by holding that as per the poll results, the unit holders of the six schemes have given their consent by majority to wind up the six schemes. It had however not examined certain aspects then. The task before the Supreme Court now was two-fold. First, decide whether the decision of the trustees to wind up a scheme under Regulation 39(2)(a) of the SEBI (Mutual Funds) Scheme, 1996 must muster the consent of the majority of the unit holders as per Regulation 18(15)(c). And second, decide the challenge to the constitutional validity of certain provisions of the SEBI (Mutual Funds) Regulations, 1996 itself.

Below is a comprehensive analysis of the entire discussion by the Supreme Court:

(A) Interpretation of Regulations 39 to 42, their interplay and harmonious construction with Regulation 18(15)(c) of the Mutual Funds Regulations, 1996

Regulations 39 to 42 and 18(5)(c)

Regulation 39 relates to ‘winding up’ of a scheme of a mutual fund. In terms of sub-regulation (2), a scheme of a mutual fund can be wound up: (a) on the happening of any event, which, in the opinion of the trustees[1], requires the scheme to be wound up; (b) if 75% of its unit holders[2] pass a resolution for winding up of the scheme; or (c) SEBI directs winding up of the scheme in the interest of the unit holders. When a scheme “is to be wound up” under sub-regulation (2), the trustees are required by sub-regulation (3) of Regulation 39 to issue a public notice in newspapers as specified.

Regulation 40, which is in the nature of statutory injunction, states that on and from the date of publication of notice under Regulation 39(3), the trustees and the Asset Management Company (“AMC”)[3] shall cease to: (a) carry on any business in respect of the scheme to be wound up; (b) create or cancel units of the scheme; and (c) issue or redeem units of the scheme. Regulation 41 relates to the procedure and manner of winding up. Regulation 42 states that after receipt of the report under Regulation 41(3), if SEBI is satisfied that all measures relating to winding up have been complied with, the scheme would cease to exist. Regulation 42-A stipulates that the units of the mutual funds scheme shall be delisted from the recognised stock exchange in accordance with the guidelines as may be specified by SEBI.

Regulation 18(15)(c), which relates to rights and obligations of the trustees, in simple words requires the trustees to take consent of the unit holders, when they, by majority, decide to wind up or prematurely redeem the units.

Decision of the High Court

The judgment of the Karnataka High Court which was under challenge, interpreted Regulation 18(15)(c) and Regulation 39(2)(a) to hold that the decision of the trustees to wind up a scheme under clause (a) to Regulation 39(2) must muster the consent of the majority of the unit holders as per Regulation 18(15)(c).

The Challenge

Contesting the finding of the High Court, the SEBI, the trustees and the AMC argued that the unit holders do not come into the picture when the trustees and the SEBI, under clauses (a) and (c) respectively of Regulation 39(2), decide to wind up a scheme. Their decision is final and binding on the unit holders. Only when the unit holders want to wind up a scheme, in terms of clause (b), a resolution by 75% of the unit holders is mandated. Thus, they contended that the findings of the High Court to the contrary should be reversed.

Analysis and Decision

(i) Interpretation of the term ‘consent’ in Regulation 18(15)(c)

In its order dated 12-2-2021 (2021 SCC OnLine SC 88), the Supreme Court interpreted Regulation 18(15)(c) and the word ‘consent’ therein. It held that the underlying thrust behind Regulation 18(15)(c) is to inform the unit holders of the reason and cause for the winding up of the scheme and to give them an opportunity to accept and give their consent or reject the proposal. It is not to frustrate and make winding up an impossibility.

The Court in the said earlier order had concluded that Regulation 18(15)(c) need not have affirmative consent of majority of all or entire pool of unit holders. The words ‘all’ or ‘entire’ are not incorporated and found in that Regulation.  It was held:

“Thus, consent of the unit holders for the purpose of Regulation 18(15)(c) would mean simple majority of the unit holders present and voting.”

(ii) Trustees are required to seek consent of unit holders

Discussing Regulation 18(15)(c) and Regulations 39 to 42 at length, the Court concluded that Regulation 18(15)(c) mirrored by use of the word ‘shall’ is couched as a command. Regulation 39(2) under clause (a) vests the power of winding up of a scheme with the trustees, and with the unit holders under clause (b) and with the SEBI under clause (c), but under Regulation 18(15)(c), the trustees are required to seek consent of the unit holders, when they by majority decide to wind up a scheme.

The Court was of the opinion that the expression ‘when the majority of the trustees decide to wind up’ in Regulation 18(15)(c) manifestly refers to clause (a) to Regulation 39(2) as this is the only Regulation which entitles the trustees to wind up the scheme. Regulation 18(15)(c), when it refers to trustees’ decision to wind up, it implies the trustees’ opinion to wind up the scheme. It was held:

“Principle of harmonious construction should be applied which, in the context of the Regulations in question, would mean that the opinion of the trustees would stand, but the consent of the unit holders is a pre-requisite for winding up.”

The Court said that such interpretation in no way dilutes or renders clause (b) to Regulation 39(2) meaningless or redundant. That clause applies where the winding up process is initiated at the instance of the unit holders, i.e. upon 75% of unit holders of the scheme passing a resolution for winding up. It was observed:

“Clause (b) does not in any manner reflect that clause (c) to Regulation 18(15) should not be read as it ordains in simple words.”

The Court rejected the argument that the unit holders are lay persons and not well versed with the market conditions. It was noted that investments by the unit holders constitute the corpus of the scheme. To deny the unit holders a say, when Regulation 18(15)(c) requires their consent, debilitates their role and right to participate. It is an in-contestable position that the unit holders exercise informed choice and discretion when they invest or redeem the units. Regulations envision the unit holders not as domain experts, albeit as discerning investors who are perceptive and prudent. The Court observed:

“The unit holders, when in doubt, as prudent investors may be advised to abstain, but they are not placid onlookers, impuissant and helpless when the trustees decide to wind up the scheme in which they have invested. The stature and rights of the unit holders can co-exist with the expertise of the trustees and should not be diluted because the trustees owe a fiduciary duty to them.

Thus, the contention that the trustees being specialists and experts in the field, their decision should be treated as binding and fait accompli has to be rejected not only in view of the specific language of Regulation 18(15)(c), but to be in concinnity with the objective and purpose of the Regulations.”

A hypothetical submission that the unit holders may reject a valid and well-considered opinion of the trustees for winding up, and therefore Regulation 18(15)(c) is directory, was again rejected by the Court. It said that:

“Assumptions cannot be a ground to wrongly interpret Regulation 18(15)(c).”

Completing the interpretation of Regulation 18(15), the Court recorded that clause (a) applies and requires the trustees to obtain consent of the unit holders whenever required by SEBI in the interest of the unit holders. Clause (b) states that the trustees would obtain consent of the unit holders whenever required to do so on the requisition made by three-fourths of the unit holders of any scheme. Accordingly, clause (a) would apply whenever SEBI mandates and clause (b) applies whenever three-fourths of the unit holders of the scheme make a requisition.

(iii) At what stage consent of unit holders is required

Harmoniously interpreting Regulations 39 to 42, the Court opined that the consent of the unit holders, as envisaged under 18(15)(c), is not required before publication of the notices under Regulation 39(3). It was held:

Consent of the unit holders should be sought post-publication of the notice and disclosure of the reasons for winding up under Regulation 39(3).

 (B) Constitutional validity of the Mutual Funds Regulations

One of the appellants raised a challenge to the constitutional validity of the SEBI (Mutual Funds) Regulations, 1996.

The Challenge

Regulation 39(2)(a) was assailed as suffering from the vice of excessive delegation. It gives unbridled power to the trustees to wind up a scheme. It was submitted that Regulation 39(2)(a) suffers from manifest arbitrariness in the absence of any prescription regulating the exercise of the power by the trustees.

It was also submitted that Regulation 39(3) equally suffers from the vice of manifest arbitrariness. Though the trustees are required to give notice disclosing circumstances leading to winding up of the scheme to SEBI, this requirement is meaningless and superficial as SEBI cannot go into the question and circumstances to be satisfied as to existence of an event warranting the extreme action of winding up.

It was further contended that Regulation 41 does not prescribe any mechanism or manner in which the authorised person or the AMC can ascertain the liabilities which are due and payable under the scheme. Lastly, it was contended that Regulation 42 is also manifestly arbitrary as SEBI is to perform only ministerial functions, much less than the functions of a regulator.

Analysis and Decision

(i) Power of SEBI to pass directions in interest of unit holders

After referring to the provisions of the SEBI Act, 1992 and elucidating the powers of SEBI, the Supreme Court expressed its reservations on the High Court’s observation regarding powers of SEBI under 11-B (Power to issue directions and levy penalty). The Supreme Court was of the opinion that if there is a violation of the regulations, i.e. Regulation 39(2)(a), 39(3), 40, 41 or 42 by the trustees or the AMC, it is open to SEBI to proceed in accordance with law and in terms of 11-B of the SEBI Act. The Court said that:

If the trustees have acted for extraneous and irrelevant reasons and considerations, the action would be in violation of clause (a) to Regulation 39(2) and therefore amenable to action under the SEBI Act, including directions under Section 11-B.

 (ii) Power of trustees not unbridled

The Court refused to accept that the trustees under Regulation 39(2)(a) have been given absolute and unbridled power to wind up a scheme. The Court noted that the language of clause (a) states that the trustees must form an opinion on the happening of any event which requires the scheme to be wound up. Further, as per Regulation 39(3), the trustees are bound to give notice disclosing the circumstances leading to the winding up of the scheme. These notices along with the reasons have to be communicated to SEBI and made known to the unit holders by publication in newspapers. The trustees are, therefore, required to come to a conclusion that due to specific circumstances articulated in writing, the scheme is required to be wound up. The Court concluded that:

This is not a case of excessive delegation wherein the legislative function has been abdicated and passed on to the trustees who can act as per their whims and fancies. … There are … sufficient guidance and safeguards in the Regulations itself on the power of the trustees to decide on winding up of the fund.

(iii) Unit holders not creditors

Culling out the distinction between unit holders and creditors drawn from the Mutual Fund Regulations, the Court noted that unit holders are investors who take the risk and, therefore, entitled to profits and gains. Having taken the calculated risk, they must also bear the losses, if any. Unit holders are not entitled to fixed return or even protection of the principal amount. Creditors, on the other hand, are entitled to fixed return as per mutually agreed contracts. Their rate of return is in the nature of interest and not profit or loss. Creditors are not risk takers as is the case with the unit holders. It was the Court’s opinion that:

In this sense, unit holders are somewhat at par with the shareholders of a company.

It was held that the argument that the unit holders should be treated pari passu with the creditors is farfetched. Similarly, the contention that unit holders are identically placed as home buyers under the Insolvency and Bankruptcy Code, was held to be equally frail and a weak argument.

(iv) Manifest arbitrariness and Scope of judicial review

The Court observed that the Mutual Fund Regulations being in the nature of economic regulations, the Court would exercise restrain while exercising power of judicial review unless clear grounds justify interference.

It was noted that the principle of manifest arbitrariness requires something to be done in exercise in the form of delegated legislation which is capricious, irrational or without adequate determining principle. Delegated legislations that are forbiddingly excessive or disproportionate can also be manifestly arbitrary. However, held the Court:

In view of the interpretation placed by us and the discussion above, the Regulations under challenge do not suffer from the vice of manifest arbitrariness.

(C) Grey Area ─ Regulation 53

Referring to issue related to the interpretation of Regulation 53 (Despatch of warrants and proceeds) of the Mutual Fund Regulations, the Court said that it is a grey area which the Court would not like to decide at this stage, till it has full facts and decision in the pending adjudication proceedings. Clause (b) to Regulation 53 requires that the AMC shall despatch the redemption or repurchase proceeds within 10 working days from the date of redemption or repurchase.

Issue in question would arise whether the AMC or the trustees are bound to honour and pay the redemption or repurchase proceeds for requests received before the date of publication of notice in terms of Regulation 39(3).

The High Court has held the expression ‘business’ in clause (a) of Regulation 40 refers to business activity and, therefore, would include payment of redemption proceeds to the unit holders, which would include the request for redemption received prior to the date of publication under Regulation 39(3). The case set up by some parties was at variance with the dictum pronounced by the High Court.

The Court said that before it can answer this aspect, it would like to have greater clarity on the factual matrix, which would be possible once the pending proceedings are concluded.

(D) Closing and Clarification

The Court refrained from referring and commenting on facts and left several issues open at this stage. Nevertheless, it clarified that the observations in the instant Order and the earlier Order dated 12-2-2021 (2021 SCC OnLine SC 88) should not be read as binding factual findings or conclusions on any disputed facts. Of course, the legal interpretation of Regulation 18(15)(c) and Regulations 39 to 42 are conclusive and binding. It was also clarified that any finding given by the High Court on facts or even on legal issues not subject matter of the instant Order or the earlier Order dated 12-2-2021 (2021 SCC OnLine SC 88) would not be treated as conclusive and binding as the findings are sub-judice and pending before the Supreme Court on interpretation as well as merits. [Franklin Templeton Trustee Services (P) Ltd. v. Amruta Garg, 2021 SCC OnLine SC 464,   decided on 14-7-2021]


[1] ‘Trustees’ has been defined in Regulation 2(y) to mean the board of trustees or the trustee company who hold the property of the mutual fund in trust for the benefit of the unit holders.

[2] ‘Unit holder’ has been defined in Regulation 2(z)(i) to mean a person holding a unit in the scheme of a mutual fund. It may be understood as akin to shareholder in a company.

[3] The AMC is a company, approved by SEBI under Regulation 21(2), which undertakes business activities in the nature of management and advisory services provided to the pooled assets.


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Supreme Court of Canada: The Bench of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., clarified the link between consent and capacity to consent. The Bench stated,

“Consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. Trial Judges are under no obligation to evaluate consent and capacity separately or in any particular order.

F and B were charged with sexually assaulting the 16-year-old complainant during a camping trip. The issue at trial was whether the complainant, who had consumed alcohol, had consented to the sexual activity with F and B. The complainant and F both testified and presented diametrically opposed versions of events; B did not testify. The Crown argued that the complainant’s evidence clearly established incapacity due to intoxication, and also that the complainant had not agreed to the sexual activity. F and B submitted that the complainant was not credible and that she had not been as intoxicated as she claimed, and that she had agreed to engage in the sexual activity. The Trial judge accepted the complainant’s evidence and convicted F and B of sexual assault.

However, the Appellate Court concluded that the Trial judge failed to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent, and failed to consider the issue of consent first and separately from the issue of capacity. As a result, the Court of Appeal concluded that a new trial was necessary for both F and B.

Consent and the capacity to give consent

The Supreme Court opined that consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. The Bench said that the Trial judges were under no obligation to evaluate consent and capacity separately or in any particular order as the complainant did not agree to the sexual activity in question, and that the trial judge’s blending of consent and capacity revealed neither an error in law nor insufficient reasons. As where a complainant is incapable of consenting, there can be no finding of fact that the complainant voluntarily agreed to the sexual activity in question. The Bench clarified,

The capacity to consent is a necessary but not sufficient precondition to the complainant’s subjective consent.

Thus, when a trial engages both the issues of whether a complainant was capable of consenting and whether they did agree to the sexual activity in question, they both go to the complainant’s subjective consent to sexual activity. Where the complainant is incapable of consenting, there can be no finding of fact that the complainant voluntarily agreed to the sexual activity in question. As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent.

Capacity to consent requires that the complainant have an operating mind capable of understanding the physical act, its sexual nature, and the specific identity of their partner, and that they have a choice of whether or not to engage in the sexual activity in question.

Appellate Courts not to Parse Trial Judges Reasons in a Search for Error

The Bench reminded the Appellate Court that the its task is not to finely parse Trial judge’s reasons in a search for error, but rather to assess whether the reasons, read in context and as a whole in light of the live issues at Trial, explain what the Trial judge decided and why they decided that way in a manner that permits effective appellate review. Expressing its disappointment, the Bench stated that despite clear guidance since R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, Appellate Courts had continue to scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials were being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the Trial judge.

Four Requirements for Capacity

The Four Requirements for Capacity for a complainant to be capable of providing subjective consent to sexual activity, is that they must be capable of understanding four things:
1. the physical act;
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that they have the choice to refuse to participate in the sexual activity.

Since subjective consent requires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question: Capacity to consent requires that the complainant be capable of understanding what is required for subjective consent — no more, no less.

Consequently, rejecting the respondents’ argument that the complainant’s claim of incapacity was belied by her thorough recollection of the sexual activity, the Bench explained,

The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.

Hence, the Bench held that the Trial judge explained what he found and why, and what he found was that the respondents committed a sexual assault upon the extremely intoxicated complainant, who was passed out when the assault commenced. Therefore, the convictions were safe and the Trial judge made no error. The Appellate Court order was set aside and the respondents’ convictions were restored.[Her Majesty The Queen v. G.F., 2021 SCC OnLine Can SC 2, decided on 14-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J. dismissed the petition on the observations made hereunder.

The facts of the case are such that the victim was waiting for the bus at the bus stand when the accused who is petitioner in the instant case, who was her friend, reached in his pickup Jeep and offered to drop her home. The victim boarded the vehicle, but the accused took a detour on the way manipulating the victim that he would take a U-turn ahead and drop her at her home. However, instead of allowing her to alight, he brought the vehicle to an isolated place and then after intimidation established coitus, despite her protests. The FIR was registered and the petition was arrested. The petitioner by way of this petition before this Court is seeking regular bail.

The Court observed that statement made under Section 164 CrPC that she had said NO for sex to the accused, and the accused told her not to cry; otherwise, he would force himself upon her. In such circumstances of threat and coercion in a secluded area, the victim was forced to cooperate with the accused, which explains the absence of physical injuries on her body, and the presence of semen, indicating unprotected.

The Court further observed that when the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again. NO MEANS NO- The simplest of sentences have become the most difficult for some men to understand. No does not mean yes, it does not mean that the girl is shy, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her. The word NO doesn’t need any further explanation or justification. It ends there, and the man has to stop. In the present case it is clear that, the victim said no to the accused when he started touching her, but he continued. It nowhere implies consent, or zeal and desire to explore and feel each other in romantic love.

The Court held

“the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application in case of changed circumstance”.

[Suresh Kumar v. State of HP, 2021 SCC OnLine HP 4434, decided on 05-05-2021]


Arunima Bose, Editorial Assistant has put this report together 

Counsel for the petitioner: Ms. Ritika Jassal and Mr. Aditya Thakur

Counsel for the respondent: Mr. Nand Lal Thakur

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr. Dhananjaya Y. Chandrachud* and M. R. Shah, JJ., pronounced an important judgment which came out to be a significant development regarding law relating to bail. The Bench not only criticized the practice of lower Courts of attaching caveat for not treating the decision as precedent, but also emphasized on need for reasoned disposal of bail matters. The Bench expressed,

“Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused…it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Factual Matrix of the Case

The High Court of Gujarat had granted bail to six persons who had been implicated in five homicidal deaths.  The genesis of the incident was that the accused had all come to the scene of offence with pistols, dhariyas and knives and that initially Vishan (A-6) and two others had fired from their rifles as a result of which five persons fell to the ground. Some of these accused were alleged to have assaulted with dhariyas and lathis over the head and body of deceased. The incident resulted in the death of five persons. Among the twenty-two accused were Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).

On 22-10-2020, the High Court had granted bail to A-13 on the primary basis that he was armed with wooden stick and no substantial role was assigned to him. Also, there had been substantial changes in the genesis of the incident including the nature of the weapons in statement of the informant. And the allegation in the FIR was that A-6 had fired several rounds from a rifle together with other persons, the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The reliance was placed by the Court on Sanjay Chandra v. CBI, 2012 (1) SCC 40, for granting bail. Later on, other accused were granted bail based on parity.

Observation and Analysis by the Court

The singular absence in the judgment of the High Court was consideration regarding nature and gravity of the crime. The incident which took place on 09-05-2020 resulted in five homicidal deaths. The orders of the High Court were conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The Bench stated, “The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.”

In Ram Govind Upadhyay v. Sudharshan Singh, the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The Court, in that case had held that, “grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction.

The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.”

In granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. The first circumstance which should have weighed with the High Court but which has been glossed over is the seriousness and gravity of the offences. Post Mortem reports had indicated extensive nature of the bodily injuries. The Bench expressed, “whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross FIR indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused.”

On Caveat regarding not to the Order as Precedent

The Bench disapproved the practice of attaching caveat not be treat the order as a precedent to claim bail on the basis of parity. It stated that whether parity could be claimed by on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent did not constitute judicially appropriate reasoning. The Bench opined, “Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Does consent of parties obviate the duty of Courts to Give Reasoned Orders?

The High Court, while granting bail to Vishan (A-6) added that that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other.

Lastly, the Bench added that the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. The impugned orders were held to be tainted with perversity and hence, were set aside. The appeal was allowed and the all the accused were to surrender forthwith.

[Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana, 2021 SCC OnLine SC 335, decided on 20-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Dr Dhananjaya Y. Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Appearance before the Court by:

For the Appellant: Sr. Adv. Vinay Navare, Adv. Jaikriti S Jadeja,

For the Accused: Adv. Purvish Malkan, Adv. Nikhil Goel, Adv. J S Atri and Adv. Haresh Raichura

For the State: Adv. Aniruddha P Mayee

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that:

“…woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.”

Present matter unbundles the trauma of a couple in a live-in relationship, isolation of a single mother, love of mother for her child, rights of biological father, entangled in the legal vortex.

Factual Matrix

In the instant case, the couple – John and Anitha are Christian and Hindu by their faith. The couple realized that their intimacy knew no bounds to chart a new path in their life. They started to live together at Ernakulam, 65 km away from the parental house of Anitha. Opposition came from their own kith and kin. They waited to officially marry once their parents were convinced. But the biological instincts of the couple could not be arrested. Anitha became pregnant in the month of May 2019. She gave birth to a baby girl on 3/2/2020 in the Government Hospital, Aluva. The birth certificate indicates the names of father and mother of the child.

Issue in the present case revolves around the importance of the birth certificate.

In the revision memorandum it was stated that the John broke the relationship with Anitha and due to anxiousness, Anitha made attempts to contact John but all were in vain after which she had no option other than to approach the Child Welfare Committee, Ernakulam and handed over the child to the Committee.

Thereafter, she constantly kept in touch with the Committee and the Child Care Institution where the child was put up, to keep a track of the wellbeing of the child.

Further it was stated in view of the above that,

Desperation and plight of the motherhood reflected through the chat messages with the social worker depicted the care for the baby from the womb of the person, Anitha.

Since Anitha had executed the Deed of Surrender the said deed permitted the Committee to give the child for adoption.

Adding to the above, it was stated that the Committee, noting that Anitha is an unmarried mother, followed the procedure that delineated for surrender of the child by an unwed mother as referable under the Adoption Regulations, 2017. On completion of the procedure, the Committee declared that the child is legally free for adoption in the manner contemplated under Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Child was thereafter given in adoption to a couple by the Family Court order on 02-02-2021.

Petitioners approached the Court claiming themselves as a live-in relationship couple approached the Court.

Government Pleader and counsel appearing for the Committee submitted before the Court that the child had already been given in adoption and based on the submissions the Court had also opined that a writ of Habeas would not lie as the proceedings concluded under JJ Act have a legal colour.

Analysis, Law and Decision

Central issue in the present matter was more related to a perplexing mind; accepting and recognizing live-in relationships.

Did the law differentiate between unwed and legally wed couple in matters or relationships not connected with marriage, as a social institution?

In the context of juvenile justice does the law differentiate unwed couple and legally wed couple to recognize biological parents?

Section 38 of the Juvenile Justice Act declares the procedure for declaring a child legally free for adoption.

Separate procedure has been referred for orphan and abandoned child and a distinct procedure for a surrendered child.

Which of the procedures have to be followed was the question involved in the case.

Under Section 38 of the JJ Act, the procedure for declaration has been made for the abandoned child and surrendered child keeping in mind the paramount parental rights of biological parents.

Bench noted that the Committee had followed the procedure for surrendering the child applicable to an unmarried mother.

Following are the circumstances wherein normally a child needs care and protection from the State/Committee:

  1. Orphan or abandoned child
  2. Surrendered child

‘Surrendered child’ needs further classification under the law:

  1. surrendered by a married couple
  2. Surrendered by an unmarried mother.

Question that perplexed Court’s mind:

High Court expressed while placing their doubt that whether it can hold a couple in a live-in relationship not a married couple for the purpose of law related to surrender?

Married Couple v. Unwed Mother

Court elaborated that a married couple has to be understood in contrast to an unwed mother. Unwed mother must be understood as a mother who begotten a child as a result of sexual assault or in a casual relationship. Law in such circumstances places importance to the right of such mothers.

“… an unmarried mother would be recognised as a single parent and surrender by such mother is legally considered as valid in the light of Section 35(1) of JJ Act and Adoption Regulations 7(4), 7(7) and 7(21).”

Married Couple: Deed of Surrender

The procedure in case of a married couple ensures that both the parents execute deed of surrender and; if the child born to a married couple and surrendered by one of the biological parent, and whereabouts of the other parent are not known, the child shall be treated as an abandoned child and procedure under Regulation 6 will have to be followed. This procedure mandates an inquiry to trace out the biological parents or the legal guardians.

Context of Juvenile Justice Act | Whether a married couple includes a couple in a live-in relationship or not?

Parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage.

Live-in relationship

In a live-in relationship, a couple acknowledges the mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both.

 Supreme Court in its decision of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, considered live-in relation similar to the marriage provided it fulfills the requirements referred as follows:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

Bench remarked that, If a mother does not acknowledge any sort of relationship with the biological parent such mother has to be treated as an unmarried mother for the purpose of Juvenile Justice.

The woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.

No relevance of Legal Marriage

The dominant object of law in making the distinction between the married couple and unmarried mother is in the context of the nature of inquiry to be conducted for tracing the biological parents to restore the child with biological parents or guardian, and in such circumstances, the legal marriage has no relevance.

In matters of surrender by unwed mother no such inquiry is contemplated as she does not acknowledge any relationship with the biological father. 

A woman’s womb is precious possession of her personhood and no one can claim right over it; except with her consent.

Woman’s decision on fatherhood

Bench expressed that it is for the woman to recognize and decide on the recognition of fatherhood of child. If she chooses the preference to acknowledge the biological father at the time of conceiving, the father has every right to be recognized as a biological father

Adding to the above, Court stated that if at the time of conception, the mother has not recognized the right of fatherhood, in the context of JJ Act, a man has no right to recognize himself as the biological father, except with her consent and; she continues to be recognized as an unwed mother for the purpose of JJ Act.

“Decisional autonomy is the key in privacy rights.”

 Hence, in view of the above discussion, it can be held that a child born in a live-in relationship also has to be construed as a child born to a married couple.

In view of the facts and circumstances of the case, High Court noted that father’s name was disclosed to the hospital authority and name of the child was also given in the birth certificate in which father’s name was mentioned.

Birth certificate is a crucial document for public authority to verify that the child is born to a married couple or not.

 High Court held that Committee is not responsible to inquire about the legal status of the marriage as they are not the competent authority to decide on such status.

 Once it is found that the child is born to a couple, for all practical purposes of JJ Act, inquiry must be initiated as though the child belonged to a married couple. 

Bench held that due enquiry procedure postulates an institutional decision of the Committee treating the child as abandoned or surrendered. The enquiry in this case must have been an enquiry as contemplated for an abandoned child as only one parent alone had executed the surrender deed.

Once the declaration under Section 38 is found invalid, all consequential proceedings would also fall.

While parting with the decision, High Court added that:

“…in a country where the people worship Goddess, in the land where people have been taught about woman : Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaahkriyaah”. (Manusmriti (3.56)). [Gods abide where women are worshiped and all actions go futile where they are dishonoured] (Manusmriti 3 : 56),

 In the State where we boast cent percent literacy, our attitude to woman is despising; a single mother has no financial or social support. She faces emotional challenges and forced to believe she is destined to be isolated as result of guilt. She gets hardly any support from the system. It is time for the Government to evolve a scheme to support the single mother.

The anomie Anitha had to face as a single mother is the hurdle created by the society. Anitha never attempted to exterminate her womb; she bore the pain to give birth; like every mother she loved to care the child… but was not allowed by circumstances in the society. She thought without support of man, she cannot survive.”

Therefore, the certificate issued under Section 38 of the JJ Act is set aside and the revision was allowed and in view of the biological father’s willingness to take care of the child, Committee to consider the rights to claim for restoration under Section 37 and 40 of the JJ Act.[ XXXXXXXXXX v. State of Kerala, 2021 SCC OnLine Ker 1709, decided on 09-04-2021]


Advocates before the Court: 

By Advs. Sri. Rajit

Smt. Lekshmi P. Nair

R6 by Adv. Smt. B. Bindu

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Manish Pitale, JJ., held that whether a minor gave her consent for sex is immaterial.

Allegation in the present matter was with respect to the alleged sexual assault.

Being aggrieved by the Additional Sessions Judge Order rejecting the prayer of the appellant to release him on bail, the present appeal was filed.

Bench noted the facts and circumstances of the case and further stated that in light of the evidence collected by the Investigating Officer, the involvement of the appellant was disclosed in the alleged commission of offence.

Further, the Court dismissed the contention of the counsel appearing for the appellant that there was consensual sex as the same deserved no consideration since respondent 2 was admittedly minor on the date of alleged incident.

“…the victim was minor at the time of alleged incident and during that period she conceived and delivered a baby. Her consent for the sexual act was immaterial.”

Victim’s statement was recorded under Section 164(5) of the Code of Criminal Procedure and the said statement would show that she never consented to the appellant for sex and apart from the alleged offences under IPC and POCSO, provision of Special Act i.e. SC & ST Act are attracted.

Therefore, in view of the above discussion present appeal was dismissed. Trial Court was directed to expedite the trial. [ABC v. State of Maharashtra,  2021 SCC OnLine Bom 517, decided on 05-04-2021]


Advocates before the Court:

Mr Rahul Kadam a/w. Mr Maaz Syed for appellant.
Mr Rohan Surve appointed advocate for Respondent No. 2.
Mr. Deepak Thakre, PP a/w. Mrs M H Mhatre, APP for Respondent-State.

Case BriefsSupreme Court

Supreme Court: In a case where two educated consenting adults had got married to each other without the consent of their parents, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ held that

“… the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.”

Background

Santosh is an M.Tech from NIT, Tiruchirapalli and is working as a Lecturer in KLES (Karnataka Lingayat Education Society) Pre-University College, Bailhongal, while Laxmi, is an M.A.B.Ed., working as an Assistant Professor in Jain College of Engineering, Belagavi, Karnataka. They developed liking for each other during these assignments. However, there was resistance from the parents of Laxmi, though the parents of Santosh were willing for the matrimony of both the well qualified petitioners who are majors and Hindu by religion.

After Laxmi had, without informing her parents, travelled from Hubli to Bangalore and thereafter to Delhi in order to get married to Santosh, her parents had filed a complaint of a missing person. Laxmi, however, sent her marriage certificate to her parents through whatsapp on 15.10.2020 in which she revealed the factum of marriage to Santosh. She also spoke to the investigating officer and informed that she had already married Santosh and was residing with him. But the IO instead insisted that she should appear before the Murgod police station to record a statement so that the case can be closed. She then sent a letter to the IO stating that she was married to Santosh and there was threat from her parents and thus, was unable to visit the police station.

Thereafter, the IO stated that they would like to close the case, but they wanted her to get her statement recorded at the police station. The IO also stated that the family members may file a case against her that she has stolen things from the home and if an FIR is filed, there would be a negative mark against Santosh and they would have to arrest him which would be problematic for his job also.

What the Court said

The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”

The Court said that the case was handled does not reflect very well on the police authorities or the IO, the marriage certificate having been received by him and the conversation already been held with Laxmi where she clearly stated that she was married to Santosh and that she was feeling threatened and apprehensive of coming to the police station.

If the IO could have visited the residence of Santosh, he could very well have recorded the statement of Laxmi rather than insisting and calling upon the petitioners to come to the local police station at Karnataka. Not only that, he undoubtedly sought to compel Laxmi to come and record the statement at police station on the threat of possibility of a false case being registered by her parents against her husband and the consequent action of the police which would result in the arrest of her husband.

“We strongly deprecate the conduct of the IO in adopting these tactics and the officer must be sent for counseling as to how to manage such cases.”

The Court also noticed that both the parties are well educated.

“Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.”

[Laxmibai Chandaragi v. State of Karnataka, 2021 SCC OnLine SC 85, decided on 08.02.2021]


*Judgment by: Justice Sanjay Kishan Kaul 

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present bail application, observed that given to the relationship shared between the prosecutrix and the petitioner, it cannot be determined at once whether physical relationship built therein was forced or consensual.

Through the present application, petitioner-accused has sought bail in the case arising out of an offence under Section 376 Penal Code, 1860 registered with Police Station, Katra. It is the case of prosecutrix that the petitioner cohabited and thereby developed physical relation with her on a false pretext of marriage. Upon coming to know that the petitioner is to enter into a wedlock with some other woman, the prosecutrix narrated the entire incident to her mother upon which a complaint under Section 376 IPC was registered against the petitioner. According to the petitioner, the allegations made in the FIR are vexatious and baseless and that no offence under Section 376 IPC is made out against him as even if it is assumed that there was any physical relationship between the petitioner and the prosecutrix, the same was consensual. Further, the petitioner has denied having made any false promise of marriage to the prosecutrix.

Court summarized the principles governing the grant or refusal of bail in the following points;

  1. The gravity of the offence and the nature of the accusation including severity of punishment in the case of conviction.
  2. The position and status of the accused vis-à-vis the victims or witnesses.
  3. The likelihood of the accused fleeing from justice.
  4. The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice.
  5. The possibility of repetition of the offence.
  6. The prima facie satisfaction of the Court in support of the charge including frivolity of the charge.
  7. Stage of the investigation.
  8. Larger interest of the public or the State.

Further, the Court placed reliance on the case of, Mahipal v. Rajesh Kumar and another, (2020) 2 SCC 118, wherein it was said, “…No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.”

 Another case bearing similar facts was cited by the Court, Uday v. State of Karnataka, (2003) 4 SCC 46, wherein the Supreme Court observed,

It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances, the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances, it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent

It was conclusively observed by the Court,

“The mystery that has to be unravelled by the investigating agency in such circumstances would be whether the consent of the prosecutrix to have sexual intercourse with petitioner was a consensual and deliberate choice on her part or it was obtained on account of misconception of fact on the basis of a false promise of marriage. This Court would not like to comment on this aspect of the matter at this stage, but then the material on record does suggest that there was deep-seated love between the petitioner and the prosecutrix.”

While allowing the present bail application Court said,

“Having regard to the long standing love affair between the prosecutrix and the petitioner coupled with the manner in which they have lived with each other for months together, a prima facie case for grant of bail is made out.”  [Rahul Raina v. Union Territory J&K, 2021 SCC OnLine J&K 13, decided on 27-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Anjani Kumar Mishra and Prakash Padia, JJ., addressed a petition wherein, two major adults who were in a live-in relation sought protection from harassment for living together.

The facts in the instant case are that petitioner 1 is a major and is aged about 24 years and petitioner 2 is aged about 28 years.

Both the petitioners decided to be in a live-in relationship without any compulsion or coercion.

Though respondents 4 and 5 forcibly tried to solemnize petitioner 1’s marriage against her wishes and on knowing the said fact, petitioner 1 decided to live with Ajay Kumar with her own free will and without fear and pressure.

It has been added that both the petitioners have been happily living with each other but respondent 4 and 5 tried to harass them.

In view of the harassment, petitioner 1 had filed a complaint seeking protection, but no action has been taken till date. Further, it was argued the law laid down by the Supreme Court from time to time petitioners are legally entitled to Live-­in relationship without any fear or pressure more especially when they are major.

Since no action was taken by the police authorities, the present petition was filed.

Decision

In the Supreme Court decision of Lata Singh v. State of U.P., (2006) 5 SCC 475, it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral.

In order to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having a relationship in the nature of marriage, persons related by consanguinity, marriages, etc.

Few other legislations have been provided with respect to reliefs to women placed in certain vulnerable situations.

The issue in the instant matter had been already dealt with in the Supreme Court decision of Indra Sarma v. V.K.V. Sharma, (2013) 15 SCC 755.

Apart from the Supreme Court decision, a long line of decisions has settled the law that:

where a boy and a girl are major and they are living with their free will, then, nobody including their parents has the authority to interfere with their living together.

Bench further opined that the petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living.

Court further added that, in case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the Senior Superintendent of Police.[Kamini Devi v. State of U.P., Writ C No. 11108 of 2020, decided on 23-11-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ refused to interfere with the conviction of a man for sexually assaulting a mentally deficient woman.

“A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for.”

Brief Background

In 2008, the 19-year-old prosecutrix, was sexually assaulted by the accused in the jugle where they both used to go to graze cattle. The accused threatened the prosecutrix not to disclose the incident to anyone and due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. When she was medically examined, it was found that she was 31 weeks pregnant. After she gave birth to a female child, blood samples of the prosecutrix, the baby and the accused were taken for DNA test.  As per report, accused was the biological father of the female child.

The trial Court acquitted the accused mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening.

However, the Himachal Pradesh High Court sentenced the accused to undergo seven years R.I. with fine of Rs. 10,000/- and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine   of Rs.5,000/- and in default of payment of fine, further three months R.I. under Section 506 IPC.

Analysis

On re-appreciation of evidence by the High Court

The Court held that in the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court, the High Court was justified in re-appreciating the entire evidence on record and the reasoning given by the learned trial Court.

On the mental condition of the prosecutrix

“Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault.”

Is language material for conducting IQ tests?

In   the   crossexamination, the Medical Expert specifically stated that the language is not material in the tests because these are independent of language. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim.

On the culpability of the accused

On evidence, it was established and proved that the victim was mentally retarded and her IQ was 62. Holding that the accused had taken disadvantage of the mental illness and low IQ of the victim, the Court noticed

“It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Despite the above, in his 313 statement the case of the accused was of a total denial. It was never the case of the accused that it was a case of consent.”

Therefore, considering the evidence on record, the Court upheld the decision of the High Court wherein it was observed that case would fall under Section 375 IPC. Further, even as per clause fifthly of Section 375 IPC, “a man is said to commit rape”, if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent.

On reduction of sentence

It was contended on behalf of the accused that he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and therefore a lenient view may be taken. The Court rejected this contention and said

“…as such the High Court has also taken a very lenient view by imposing the minimum sentence of seven years RI.  It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that accused has taken undue advantage of the mental sickness/illness of the victim.”

[Chaman Lal v. State of Himachal Pradesh, 2020 SCC OnLine SC 988, decided on 03.12.2020]


*Justice MR Shah has penned this judgment

For Appellant: Advocate Radhika Gautam, learned Advocate has appeared for

For State: Advocate Sarthak Ghonkrokta

Case BriefsHigh Courts

Orissa High Court: Biswanath Rath J., allowed the petition in part and laid down comprehensive guidelines for the state to follow in like cases and interpreted the various provisions of The Medical Termination of Pregnancy Act, 1971 i.e. MTP Act, 1971; The Medical Termination of Pregnancy Rules, 2003, i.e. MTP Rules, 2003 and The Medical Termination of Pregnancy Regulations, 2003 i.e. MTP Regulations, 2003 (hereinafter referred) keeping in mind the intent of the legislation.

The background of the case is that a wife of a labourer found unnatural behaviour in her physically disabled and mentally retarded daughter and on close scrutiny and soliciting came to know that she has been raped pursuant to which an FIR has been registered against accused Sili Manjhi (as named by the victim daughter) under Sections 376(2)(1), 294 and 506 Penal Code, 1860. The victim on being medically tested by medical officers at the instance of police officials was not only found to be physically handicapped and mentally retarded but also pregnant of almost four months. The instant writ petition has been filed by a desperate mother seeking permission for terminating the pregnancy of the victim daughter who is unable to take care of herself properly due to mental and physical incapacity under the provisions of MTP Act, 1971; MTP Rules, 2003 and MTP Regulations, 2003.

Counsel for the petitioner S.C. Puspalaka, A.K. Tarai, T. Priyadarshini and T. Barik prayed to grant necessary direction to the competent authority as deem fit and proper and also for granting appropriate relief not only to the victim but also to all such who have also become victim in the process.

Counsel for the State submitted that as per the report dated 13-08-2020 given by a committee formed in terms of Regulation 3 of the MTP Regulations, 2003 it is found that the victim girl is mentally retarded and that she was pregnant for four months though at some places it is mentioned as 16 weeks. Due to conflict in the duration of pregnancy as per medical examination, a second report was conducted. According to the second report dated 05-09-2020, the pregnancy period was 24 weeks. Due to such a huge difference in results in the two reports in just about 23 days, a third examination was suggested to arrive at a just conclusion.

The third and final report suggested no possibility of termination of pregnancy as termination will endanger the life of mother.

After the final report, counsel for petitioner submitted that petitioner has a disastrous financial condition and cannot take care of both victim and her child involved unless she is provided with appropriate financial and medical support.

After perusing Sections 3, 4 & 5 of the MTP Act, 1971, Rule 5 of the MTP Rules, 2003 and Regulation 3 of MTP Regulation, 2003 it is to be stated that termination of pregnancy can be allowed, if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks but subject to however under the opinion of the two registered Medical practitioners on the issues prescribed therein and also taking care of the provisions at the Explanation ‘I’ therein. After perusal of the “Statement of Objects and Reasons” of MTP Act, 1971which states as under

 “3. There is thus avoidable wastage of the mother’s health, strength and sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure – when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds – such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc., and (3) eugenic grounds – where there is substantial risk that the child, if born, would suffer from deformities and diseases.”

 Hence it is amply clear that the legislative intent of the Act is to provide for termination of pregnancies in such cases on humanitarian grounds subject to the opinion of the committee of doctors. The Court also expressed its dismay and agony towards the public authorities due to negligence however unintentional and the resultant default in the two reports due to which delay happened, the cost of which will be borne by the victim.

The judgments relied on were Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 and Z v. State of Bihar, (2018) 11 SCC 572 excerpts of which are stated hereunder:

The legislative intention of the 1971 Act and the decision in Suchita Srivastava prominentaly emphasize on personal autonomy of a pregnant woman to terminate the pregnancy in terms of Section 3 of the Act. Recently, Parliament has passed the Mental Healthcare Act, 2017 which has received the assent of the President on 7-4-2017.

 “ It has to be borne in mind that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman are not hindered. The fundamental consent relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be over-emphasised.”

Hence as per the medical reports submitted by the doctors, and the submissions made post that on behalf of the petitioners regarding taking care of the victim and its child, if financial help provided, the Court declining the relief of termination of pregnancy under the compelling reasons issued necessary direction to the State Government as a matter of future guideline involving case of this nature.

 Specific Guidelines issued for the case at hand (verbatim reproduced)

(A) Considering that the victim is suffering on account of rape committed on her and the suffering for which the authorities of the State are responsible, this Court directs the State of Odisha to pay as an immediate measure, by way of exgratia grant, a sum of Rs 5,00,000 (Rupees Five lakh) within seven days of receipt of copy of the judgment, to the victim to be kept in long term Fixed Deposit in any Nationalized Bank in the name of victim to be renewed from time to time with operation of such account by the mother of the victim. Annual interest on such Fixed Deposit will be credited to the passbook so maintained with authorization to the mother of the victim herein, to utilize the same towards her daughter’s expenditure till survival of the victim, whereafter the child will be entitled to this amount.

(B) Similarly a further sum of Rs 3,00,000 (Rupees Three lakh) in case of male child and in the event the victim gives birth to a girl child then looking to the suffering of the girl child throughout her life, for the peculiar circumstance involved herein, a sum of Rs.5,00,000/- (Rupees Five lakh) to at least make sure that the girl child does not suffer throughout her life, amount as appropriate, shall also be released by way of ex-gratia grant in favour of child within at least ten days of such birth. Here also the amount will be kept in Fixed Deposit in any nationalized Bank by opening a Savings Bank Account in the name of the child. This Account will also be run in the name of minor child to be operated by the maternal Grandmother with scope for renewal of the Fixed Deposit from time to time at least till the child becomes major. Interest so yielded through the F.D. shall be accounted to the SB Account Passbook in the name of minor and to be operated by maternal grandmother only and utilized for the purpose of meeting expenditure on child. The child will ultimately be the owner of such amount once he/she becomes major.

(C) Amount granted by way of ex gratia under Item Nos.1 and 2 shall however be in addition to grant of any payment to the victim and the child on application of The Victim Compensation Scheme under the provisions of Section 357-A of the Code of Criminal Procedure decided by trial court or any other authority competent to do so.

(D) Considering the mental condition of the victim and financial condition of the family, utmost care of the victim is to be taken in continuation of her pregnancy. The best medical facility be made available so as to ensure proper care and supervision during the period of pregnancy as well as postnatal care with the supervision of Doctors in the S.C.B Medical College & Hospital, Cuttack with assistance of team of Doctors at the District Medical Level. Keeping in view the report dated 12.09.2020 the delivery of the victim shall take place only in the S.C.B. Medical College & Hospital, Cuttack.

(E) Looking to the mental retardness along with physical handicapness in the victim, there may be periodical check-up of the victim by a Psychiatric Expert and other related doctors required on requisition of the CDMO. The Superintendent, SCB Medical College and Hospital, Cuttack will ensure such assistance.

(F) The entire transport, medical and medicinal expenses including accommodation of the victim and her mother, if necessary during treatment, shall be the responsibility of the District Administration.

(G) The entire education of the child will be the responsibility of the State.

(H) In the event any grievance arises involving providing any other assistance to the victim and/or the child, it shall be open to the petitioner to first approach the Collector of the District on the basis of direction herein and in case of failure in responding to the genuine asking, it will be open to the victim’s mother and child on attaining his/her majority to approach the High Court of Orissa in filing appropriate application.

(I) Looking to the condition of victim, this Court also observes, the child to be born shall be given proper treatment and nutrition by the State and if any medical aid is necessary it shall also be provided to him/her by the State at least till the child is sufficiently grown up.

(J) Looking to the family of the victim runs on the sole income of the husband of the petitioner being a labourer, to see that the petitioner while maintaining her family will also be able to look after the victim and in future the child to take birth, this Court directs the District Collector to depute a competent officer to the residence of the petitioner to assess the capacity of subsistence in her and based on detailed assessment of their survivability, the Collector shall take decision on providing further assistance through any of the Central Scheme available for the purpose, if any, by completing the entire exercise within four weeks from the date of judgment.

(K) To protect the future of child and to see there is no mismanagement of fund provided both to the victim and the child by direction of this Court, this Court further directs that the Secretary, District Legal Services Authority shall have supervision on the spending by the mother against the account involving both the victim as well as the child so long as the victim survives and the child becomes major. The Secretary is also authorized, in the event he finds any irregularity in the spending of funds or mismanagement of funds involved by the mother, the petitioner herein, involving both the accounts, may seek leave of the High Court for any other mode of operation.

General Guidelines issued (verbatim reproduced)

(i) Once an incident of rape; be it on minor, minor and mentally retarded, minor and physically handicapped, unmarried major, married major, mentally retarded major and physically handicapped major is made to Police within eight weeks period, the Police and the C.D.M.O will take consent of the guardian-mother in case of minor, minor and mentally retarded, minor and physically handicapped as to whether they are interested to continue with pregnancy or interested in termination? In case of major and physically handicapped, consent of such victim and in case major but mentally retarded, consent of mother of such victim shall be taken within same time as to whether the victim should continue with pregnancy or interested in termination. This Court here clarifies, in case there is no interest shown for continuing with pregnancy, immediately after the 1st report of Committee the local Chief District Medical Officer should undertake the exercise of termination but in terms of the Medical Termination of Pregnancy Act, 1971. In case interest for termination is not shown then-Police authority along with Chief District Medical Officer is to take care of both mother and child in womb involving pre-birth care and postbirth care for at least till a period of one year after birth takes place. Further, in case of an unmarried major and married major, procedure indicated hereinabove shall also be followed but however with consent of major girl. In case of termination of pregnancy, the C.D.M.O shall take DNA sample of child to ensure its handing over to Investigating Agency, so as to be forwarded to the concerned Court for requirement, if any, there in the criminal trial.

(ii) To maintain secrecy of her pregnancy and termination, the State will ensure, if necessary, to handover such mother to remain in custody of Woman Rehabilitation Centre until her delivery and convalescence.

(iii) In case victim and her mother wish to live in their own residence, they may do so but will be provided all medical help by the State Authority at the cost of the State.

(iv) In required cases, the State will also permit the girl’s mother to either live with her or regular visit to give moral and emotional support and all medical support will be extended by the State through such Institution.

(v) In case of involvement of child through physically handicapped and/or mentally retarded woman subject to medical assessment that such mother is unable to take care of the child born provided there is no elder member coming forward to take care of such child, keeping in view the welfare of the child he or she may be taken care under the Juvenile Justice care mechanism involving agency engaged for such purpose and for about at least 12 months such child will not be given in adoption. This is, however, if there is nobody in the family to take care of such child in course of time.

(vi) In the entire process, all concerned will ensure that secrecy of pregnancy, anonymity of the petitioner and the child to be born is maintained.

vii. In cases it shall equally be the responsibility of the applicant society to ensure that the child does not know about his/her mother and of course about the incident.

viii. There should be immediate grant of exgratia-cum compensation subject to the further grant of victim compensation involving the criminal trial.

(ix) Considering such incidence occurring for failure of Law and Order Authority in case of requirement of high level treatment of rape victim or the child born in such process, the victim and/or the child will be provided the highest level of treatment at the cost of the State including the attendants journey, accommodation and fooding cost, if any.

(x) Report of the Doctor or team of Doctor, as the case may be, obtained with all promptitude and any delay at the level of State Authority shall lead to fixation of accountability and responsibility against all such involved.

(xi) When a pregnant mother is required for examination by a Medical Board for the purpose of termination, it must include apart from Obstetrics and Gynecology also (i) Paediatrics, (ii) Psychiatry/Psyochology, (iii) Radiology/Sonography, (iv) from field of Medicine with inclusion of tests involving foetus also Mental Health Care Act, 2017.

(xii) Constitution and establishment as expeditiously as possible Medical Boards under the provisions of MTP Act, 1971, in each District to fasten examination and effective action involving such cases.

(xiii). District Level Committees to ensure that there are sufficient approved places in terms of Section 4(b) of the MTP Act, 1971 in each districts of the State of Odisha. Chief District Medical Officers involved undertake periodic instruction of such approved places following rule 6 of the MTP Rules, 2003 and take immediate measure to remove difficulties if any. State in its appropriate Departments will have the obligation to co-operate in such matters.

(xiv) If a woman reports with a pregnancy resulting from an assault, she is to be given the report of undergoing an abortion and protocols for the Medical Termination of Pregnancy Act are to be followed. Further with preservation of products of conception (POC) be sent to proper custody as evidence and other required purpose under the direction of the Court of competent authority including DNA Test, if any.

(xv) There should also be strict following of User Handbook on Protection of Children from Sexual Offences Act, 2012.

The copy of the judgment was also directed to be supplied to Secretary to Government in Health Department, Secretary to Government in Women & Child Care Department, Secretary to Government in Home Department, Chairperson of the State Women Commission, Director, Medical Education and Technology and Superintendents of all the three Premier Medical College & Hospital of the State and also to all the District Judges, who in turn shall bring the same to the notice of the Sessions Court(s) dealing with sexual offences, the Presiding Officer, POCSO Court, the Principal Magistrate of Juvenile Justice Board under its jurisdiction and to the Member Secretary of State Legal Services Authority for bringing it to the notice of the Chairman and the Secretary of District Legal Services Authority for their cooperation and coordination and its effective implementation.

In view of the above, the petition allowed in part and disposed off.[Runa Majhi v. State of Odisha, WP (C) No. 21947 of 2020, decided on 14-09-2020 ]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S.V. Bhati and Bechu Kurian Thomas, JJ., addressed an issue pertaining to the following terms,

Total deprivation, through a partition deed and a release deed, of the property of a deaf and dumb sister forced her to approach the Court to restore her rights in her property and claim partition.

In the present matter, Court held that persons having physical infirmities like deafness or dumbness which seriously affect their cognitive functions can file a suit through “next friend”.

Mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness.

Facts

Mary, Leelamma, and Aani are sisters. Mary being the eldest and Aani the youngest. Leelamma, the second amongst the sisters, is a deaf and dumb person. She is also illiterate.

The eldest sister claimed to have brought up Leelamma under her care and custody, conducted her marriage, and that of her daughter too. Leelamma’s conjugal life with her husband did not last long as she came back along with her daughter to Mary’s care.

Allegation

Leelamma alleged that partition deed and the release deed were executed on account of fraud and undue influence exerted over the plaintiff and thus sought to set aside the documents.

Partition Deed

As per the partition deed, the properties left behind the mother were divided between the three sisters.

Defendant 1 was allotted A schedule comprising 60 cents, while B schedule comprising just 5 cents, was allotted to the share of both plaintiff and defendant 1. Youngest sister and defendant 2 recited in the document that she is relinquishing her share in the properties.

Mary, defendant 1 the absolute owner of the entire 65 cents property.

Fraud and Dishonesty

Plaintiff conveyed to her daughter through gestures that she had been taken to some place to give her signature and that her thumb impression was taken.

Plaintiff alleged that release deed was cerated by undue influence, fraudulently, dishonestly, and without her knowledge or consent.

Next Friend

Defendant 1 questioned the right of the next friend to file the suit and also denied the incapacity of the plaintiff as far as her ability to comprehend and do things by herself was concerned and also denied the allegation of fraud, cheating and undue influence exerted by the defendants over the plaintiff.

Analysis and Decision

Next Friend

Order 32 Rule 15 of the Code of Civil Procedure, 1908 deal with Suits by or Against Minors and Persons of Unsound Mind. Appointment of next friend for a person with an unsound mind.

Further, the said provision deals with persons of mental infirmity, who are, by the said reason, incapable of protecting their interests, except with the assistance of a next friend, when suing or being sued.

Mental Infirmity

Living as a deaf and dumb person, has a debilitating effect on the mental faculties of comprehension, thought, communication and even response. These faculties when affected will have an effect on the person’s capacity to protect his civil rights.

Fraud, Undue Influence or Coercion

There is no dispute with the proposition that the burden of proof in respect of the plea of fraud, undue influence or coercion is upon the person who alleges the same.

Valid Contract

Free consent, competency to contract, lawful consideration, lawful object and agreement not declared to be void, are the main ingredients for a valid contract. It is a consensual act and the parties are free to settle any terms as they please.

Whether consent for partition and for the release deed has been obtained by undue influence or fraud played by the defendants upon the plaintiff?

High Court observed that, taking care of one’s own sister is a gratuitous or magnanimous act for which it cannot be believed that the entire property will be given away.

Position of Dominance

In the present matter, the defendants failed to prove good faith in the transaction and the execution of release deed documents was proved to have been done exploiting the position of dominance in which defendant 1 wielded over the plaintiff.

Principle of Undue Influence

Hence Court being of firm view stated that the said transactions relating to the share right of the plaintiff are void on the principle of undue influence.

Court also observed that nowhere does the document recite as to why more than 95% of the property (62.5 cents out of a total of 65 cents) left behind by mother of the parties to the document has been allotted to the share of the defendant 1, while the plaintiff is left with a meagre 4% (2.5 cents). Even the 2.5 cents allotted to the plaintiff was released in favour of the defendant1, within a period of five days of execution of Ext.A1. Though the document mentions payment of Rs 2.5 lakhs as consideration for the said transaction, it has come out in evidence that no such payment was received by the plaintiff.

“Fraud in the present case is evident and it has been deployed to exploit a hapless lady of her properties.”

Fraud

Referring to Section 34 of the Indian Registration Act, 1908 and the Rules made thereunder may be apposite in the present context and Court found that the failure to inform the Sub-Registrar about the deafness and dumbness of one of the parties to the document was a deft method in playing fraud.

Hence, defendant 1 is entitled to 2/3rd share in the plaint schedule property and held that defendant 2 is not entitled to any share. [Mary v. Leelamma, 2020 SCC OnLine Ker 2491, decided on 30-06-2020]

Case BriefsHigh Courts

Bombay High Court: M.G. Sewikar, J., denied bail to the applicant accused of deceiving the prosecutrix by giving false promise of marriage who submitted herself for sexual intercourse based on the misconception of facts.

The present application was filed for grant of anticipatory bail for offences registered under Sections 376, 417, 323, 504, 506 of the Penal Code, 1860.

Informant aged 20 years used to go for labour work at a poultry farm, where she got acquainted with the applicant and promised to marry her.

Applicant had sexual intercourse with the informant twice under the promise of marriage.

About 2 months before the filing of the FIR, the applicant called her and demanded sexual favour from the informant, but she denied on the pretext getting married. Applicant got enraged and beat her.

Later, the informant learnt that the applicant was already married.

Counsel for the applicant, R.S. Shinde and V.S. Badakh, APP for the State.

From the FIR filed, it is apparent that the prosecutrix gave consent for the sexual intercourse as the applicant promised to marry her. 

Question to be determined:

Whether the consent of the prosecutrix was a voluntary consent or it was a consent-based on the misconception of facts?

In case of rape under Section 376 of the Penal Code, more particularly, in cases where consent is obtained by giving false promise of marriage, it has to be ascertained whether the accused did not have the intention to marry the prosecutirx right from the inception.

For the above-stated aspect on the matter, the law was settled.

Section 90 of the Penal Code, 1860 talks about “Consent known to be given under fear or misconception” and the essential requirement for that is, the same must have been obtained under the misconception of fact and the accused must be aware that the consent was given in consequence of such fear or misconception.

Court observes that, investigation papers do not reveal that the prosecutrix had the knowledge that the accused was a married man before submitting herself for sexual intercourse. If she had submitted herself for sexual intercourse with full knowledge that the applicant was a married man, the consent would not be vitiated.

In view of Section 5(i) of the Hindu Marriage Act, a person cannot contract second marriage if his or her spouse is living.

In view of the above-stated provision, the applicant could not have legally married the prosecutrix during the subsistence of his marriage.

Further, the Court stated that the accused had knowledge that he would not be able to marry the prosecutrix as long as his marriage is subsisting. This fact clearly shows that the applicant had the intention to deceive the prosecutrix by giving false promise of marriage. Therefore, the consent given by the prosecutrix is vitiated because of the concealment of material fact by the accused from her.

Hence, in view of the above-stated facts, the applicant is not entitled to be released.[Siddharth Ramkrishna Chitte v. State of Maharashtra, 2020 SCC OnLine Bom 864, decided on 26-06-2020]

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., granted bail to the applicants who were accused of committing offence of unnatural sex without consent and outraging the modesty of a woman.

An FIR was lodged by a grown-up lady aged 41 years old against her husband and brother-in-law.

Allegations placed by the woman were that her husband i.e. Ravi time and again had unnatural sex with her against her consent. She also alleged that her brother-in-law i.e. applicant used to outrage her modesty and was demanding sexual favour.

Another crime was filed by the daughter of the applicant. The girl alleged against her uncle Ravi that while she was studying in 10th standard, he tried touching her inappropriately and outraged her modesty.

Applicants Counsel, S.P. Bhandarkar submitted that both the complaints are nothing but an outcome of matrimonial flued.

Unnatural Sex

Court noted that the marriage of strained couple sailed smoothly for 21 long years and has two children. After such a long time, the wife alleged unnatural sexual acts at the hands of her husband.

Though it is alleged that since inception, the husband was prone to seek unnatural sex, however, after a long gap of 21 years the matter has been reported to the police.

Bench cited the Supreme Court decision in the case of Navtej Singh Johar v. UOI, (2018) 10 SCC 1, wherein it was held that,

“Unnatural consensual sexual acts of adults in private are de-criminalized.”

Non-Consensual

In light of the above-stated decision, the offence would only be attracted if it was done without the consent of the adult.

In the present matter, it has been unfolded that the allegation was running for a period of 20 years, but, the complaint had been lodged thereafter. No medical evidence to support the allegations was placed in the complaint.

Court noted that both the FIRs were simultaneously filed, which speaks for itself.

In view of the above, both the applicants made out a case for grant of pre-arrest bail and Court disposed of the criminal applications. [Rajendra Ramkrushna Malve v. State of Maharashtra, 2020 SCC OnLine Bom 863, decided on 11-08-2020]