Legislation UpdatesRules & Regulations

The Central Government has notified Surrogacy (Regulation) Rules, 2022 which provides Form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic.

Key points:

  • Surrogacy clinics shall have at least one gynaecologist, one anesthetist, one embryologist and one counselor. The clinic may employ additional staff by the Assisted Reproductive Technology Level 2 clinics; normally Director, Andrologist and shall appoint such staff as may be necessary to assist the clinic into day-to-day work.
  • Manner of application for obtaining a certificate of recommendation by the Board has been specified in Form 1.
  • The intending woman or couple must purchase a general health insurance coverage in favour of surrogate mother for a period of thirty six months from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority established under the provisions of the Insurance Regulatory and Development Authority Act, 1999 for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post- partum delivery complications.
  • Number of attempts of any surrogacy procedure on the surrogate mother shall not be more than three times.
  • Consent of a surrogate mother shall be as specified in Form 2.
  • Gynaecologist must transfer one embryo in the uterus of a surrogate mother during a treatment cycle: Provided that only in special circumstances up to three embryos may be transferred.
  • Surrogate mother may be allowed for abortion during the process of surrogacy in accordance with the Medical Termination of Pregnancy Act, 1971.
  • An application for registration for a surrogacy clinic shall be made by the surrogacy clinic which is carrying out procedures related to the Surrogacy.
  • The appropriate authority shall, after making such enquiry and after satisfying itself that the applicant has complied with all the requirements, shall grant a certificate of registration in Form 4 to the applicant.
Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Apprehension of harassment and violence at the hands of their relatives, led a young couple to knock on the doors of the Court. The bench of M.A. Chowdhary, J., while perusing the facts and the fears presented by the petitioners, made some profound observations vis-a-vis two adults consensually marrying. The Court stated that, Arts. 19 and 21 of the Constitution duly recognises the right of two consenting adults entering into wedlock. “Consent of family or community or clan is not necessary once two adult individuals agree to enter into wedlock and their consent has to be piously given primacy. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and values it stands for”.

As per the facts, the petitioners claiming to be majors, contracted marriage out of their free will and started living as husband and wife. The said marriage was contracted as per Muslim personal laws and traditions. Upon developing a fear for their safety and life, the petitioners approached the Court seeking protection and security cover from their relatives.

Upon examining the prayer, the Court observed that Right to Marry has sanction of the Constitution, therefore it needs to be protected and it cannot succumb to conception of class honour or group thinking and that the Constitutional Courts should act as a watchful sentinel to guard the right to liberty of an individual, as dignified existence has an inseparable association with liberty. “Life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person“. Noting that choice is an inextricable part of dignity, thus no one should be allowed to interfere with the fulfilment of an individual’s choice. “When two adults marry out of their volition, they choose their path… and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation”.

With the aforementioned observations, the Court directed the respondents to provide adequate security cover to petitioners and act in accordance with the law laid down by the Supreme Court in Lata Singh v. State of U. P. (2006) 5 SCC 475, and Shakti Vahini v. Union of India, (2018) 7 SCC 192. The Court also directed the respondents to verify petitioners’ claims vis-a-vis their age and proper solemnization of marriage. The Court also clarified that the observations made in the instant petition do not authenticate the petitioners’ marriage, as the same is dependent on fulfilment of requisites as envisaged under prevalent laws.

[Sugra Fatima v. Union Territory of J&K, 2022 SCC OnLine J&K 472, decided on 14-06-2022]


For the petitioners: Asma Rashid, Advocate

For the respondents: Insha Rashid, GA


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J. allowed a petition which was preferred under Section 482 of Code of Criminal Procedure seeking quashment of FIR registered against the petitioner and consequential  criminal proceedings for offence under Sections 376, 506 of Penal Code, 1860. 

 

An FIR was registered by respondent 2/complainant/prosecutrix on 04-12-2019 who happened to be a lady aged 41 years against the petitioner, a male aged 55 years with the allegations that her husband Mukesh died in 1999 leaving two children and the petitioner induced her to marry so that he can maintain her children born out of first wedlock of prosecutrix and with that inducement he brought her to Bajranggarh and without her consent committed rape in the month of May, 2001 with her as a result whereof she became pregnant and out of such relation, one child was born. Thereafter petitioner used to have physical relationship with her continuously and when after four years she came back to Gwalior then also petitioner used to call her for intermittent payments towards her maintenance amount and used to commit rape and threatened her with dire consequences.  

 

After investigation, charge-sheet was filed against the petitioner and trial was under consideration. Counsel for the petitioner submitted that from the very contents of FIR, improbable event has been conceptualized by prosecutrix and case suffered from vexatious litigation just to harass petitioner. He pointed out that it is highly improbable that she remained silent for such long years and after 18 years she raised her voice. He also pointed out that petitioner did not part his whole property in favour of prosecutrix, then these false allegations have been levelled. 

The Court was of the opinion that when petitioner and prosecutrix lived together as a couple for 18 long years then after such lapse of time any allegation levelled by prosecutrix pales into oblivion because they are primarily motivated to exert pressure. Not only this, perusal of application under Section 125 of Cr.P.C. filed at the instance of respondent 2 further revealed that on the one hand she levelled the allegations that they lived in live-in relationship but now she made an application that they lived as married couple. Such divergent stand can only be availed of in case of misrepresentation of facts. 

The Court after reiterating the different exigencies laid down under which interference under Section 482 of Cr.P.C. can be made in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 found that no offence is made out and perusal of charge-sheet and different statements further substantiates the arguments of petitioner. Besides that, it appears to be vexatious and frivolous litigation just to exert pressure over petitioner to extract money or an attempt made by prosecutrix to convert domestic dispute into criminal allegations. It would be miscarriage of justice if such false allegations are allowed to sustain and petitioner is unnecessarily dragged into litigation to defend himself. 

The petition was allowed and the FIR was quashed.  

[Manohar Silawat v. State of Madhya Pradesh,2022 SCC OnLine MP 1288, order dated 09-06-2022] 


For Petitioner: Mr Amit Lahoti  

For Respondent: Mr Ravi Ballabh Tripathi 


*Suchita Shukla, Editorial Assistant has reported this brief.

 

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. allowed an appeal against an order of the Trial Court which convicted a man of raping a girl and thereby ordered that the man be released from jail forthwith.

The facts stated by the prosecution were that the prosecutrix left her house to get some goods from the market but did not return. She returned on the next day. She told that the appellant, accompanied by the co-accused Rajat enticed her in Scooty. The appellant then took her to his Aunt’s house. He made her drink beer and, in the night, forcibly raped her and threatened her to life if she reveals it to anyone. A case was registered under the POCSO Act, 2012 and under Sections 363, 376 and 506 IPC. Upon further investigation, age of the prosecutrix was ascertained to be above 18 years and the complaint under the POCSO Act, 2012 was dropped.

In order to establish the offence, it must be proved that the act was done without the ‘consent’ of the prosecutrix. The Court referred to the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, which stated-

“30. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.”

Also, it is well laid down that where the sexual intercourse by the accused is proved and the woman states before the court that she did not consent, the court shall presume that the woman did not consent.

However, the Court opined that conviction cannot be based on the statement of the prosecutrix alone unless it qualifies the parameters of reliability, credibility and truthfulness.

The Court noted the following points to come to the conclusion that the prosecutrix gave her consent to the act:

  • At the first instance, why did the prosecutrix joined the company of the appellant and Rajat. If Rajat wanted to speak to her and she was not willing for it, she would have simply denied it.
  • According to the prosecutrix, she was in the market. She was not all alone. Instead of Rajat raising alarm, why the prosecutrix did not raise alarm? Why did she join the appellant and the co-accused? In her cross examination, the prosecutrix has categorically stated that she did not raise any alarm.
  • In her statement, the prosecutrix categorically tells that on mutual consent she had gone Pauri. She also bought a beer for herself on the way. It means she was not forced to go to Pauri by the appellant.
  • The room in which the prosecutrix was sleeping in was bolted in from the inside. The appellant called her 2:30 in the night. But she did not inform about it to anyone instead she silently unbolted the door and sneaked into the kitchen suggesting that she was a consenting party. This belies her statement that she was raped forcefully.
  • In her statement, she told that after the incident, she slept quietly. She did not tell about it to anyone in the house she was staying on the next day also.

In view of the above arguments, the Court was of the view that the prosecution could not establish the offence under Section 375 IPC since the act was with the free and voluntary consent of the prosecutrix. The Court further ordered that the appellant be released from jail. [Sanjay Semwal v. State of Uttarakhand, Criminal Appeal No. 265 of 2021, decided on 11-11-2021]


Advocates before the Court:

For Appellant: Mr V.B.S. Negi, Senior Advocate, assisted by Ms Prabha Naithani

For State: Mr Lalit Miglani, A.G.A.

Case BriefsHigh Courts

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

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

–Justice Rajiv Shakdher

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

 Remarks before pronouncing the ruling

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

— Justice Rajiv Shakdher

Whether Marital Rape Exception should be struck down?

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

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

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

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

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

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

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

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

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

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

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

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

Conjugal expectation

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

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

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

Invasion of Private Space 

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

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

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

Gathering evidentiary material would be difficult

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

New Offence 

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

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

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

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

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

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

MRE violates Article 21 of the Constitution

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

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

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

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

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

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

Separated husbands

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

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

Conclusion

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

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

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

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

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

Justice C. Hari Shankar’s Opinion

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

Re: Article 14

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

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

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

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

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

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

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

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

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

—Justice Shankar

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

Adding to the above observation, it was expressed that,

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

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

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

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

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

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

Conjugal right v. Conjugal expectation

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

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

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

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

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

Consent and the ‘effect doctrine’

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

Conclusion

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

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

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

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

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


Advocates before the Court

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

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

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

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

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

….. Respondents

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

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

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

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

W.P.(C) 6024/2017

…Petitioner

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

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

W.P.(CRL) 964/2017

…… Petitioner

Mr Sahil Malik, Adv.

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

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

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


Read More:

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

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

Hot Off The PressNews

Delhi High Court will be soon pronouncing its ruling with respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?

Delhi High Court to decide on Exception 2 to Section 375 of the Penal Code, 1860. (IPC)

What does Section 375 Exception 2 state?


Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

On 21-2-2022, the Delhi High Court had reserved its order.

[To be updated once Judgment is pronounced]


Also Read:

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

Case BriefsHigh Courts

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

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

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

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

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

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


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

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


Suchita Shukla, Editorial Assistant has reported this brief.

Op EdsOP. ED.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


*Advocate on Record, Supreme Court of India.

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

1Penal Code, 1860.

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

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

4Penal Code, S. 375.

[1](2003) 4 SCC 46.

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

7Penal Code, 1860, S. 90.

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

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

10(2005) 1 SCC 88.

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

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

13(2003) 4 SCC 46.

14(2005) 1 SCC 88.

15(2006) 11 SCC 615.

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

17(2013) 7 SCC 675.

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

19(2013) 9 SCC 113, 118.

20(2000) 7 SCC 224.

21(2013) 12 SCC 710.

22(2006) 11 SCC 615.

23(2013) 16 SCC 651, 658.

24(2019) 9 SCC 608, 620.

25(2019) 13 SCC 1.

26(2019) 18 SCC 191, 202.

27Penal Code, 1860, S. 376.

28(2020) 10 SCC 108.

29(2003) 4 SCC 46.

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

312021 SCC OnLine SC 181.

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

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

34(2013) 9 SCC 113.

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

36(1877) 2 QBD 410.

37(1923) 1 KB 340.

38(1923) 1 KB 340.

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

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

412021 SCC OnLine All 500.

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

432020 SCC OnLine Ori 417.

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

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

46(2003) 4 SCC 46.

472021 SCC OnLine SC 181.

Op EdsOP. ED.

Decades have passed, several amendments have been introduced, yet no specific provision to punish a man indulging in sexual acts with his wife considering as his right and disrespecting the significance of the word “Consent”. Why?

Delhi High Court will be soon pronouncing its ruling in respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?


Husband not guilty to rape his own wife


In 2018, Gujarat High Court’s Single Judge Bench in Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 while noting the acts of a husband to constitute as rape under Section 375 stated that lawful marriage between the accused and the first informant that saves the situation for the husband. 

“…the complainant is a legally wedded wife of the accused, the sexual intercourse with her or any sexual acts by accused would not constitute an offence of rape even if it was by force, violence or against her wishes.”

Though the Court made it clear that in case of separation if a husband makes sexual intercourse with the wife, the said act would be an offence under Section 376-B.

“By marriage a woman gives irrevocable consent for her husband to have sex with her any time he demands it.”

“If the husband lays an assault on her wife, then that would constitute an offence under the IPC. If the very same husband lays an assault and forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage between the two.”

Gujarat High Court observed that,

Husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage.

In 2021, in a recent decision of Chhattisgarh High Court, it was held that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape.” [Dilip Pandey v. State of Chhattisgarh, CR.R. No. 177 of 2021]

Whether a wife can claim divorce based on marital rape?


Kerala High Court’s Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., remarked that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Noting that the wife was subjected to the worst form of sexual perversion and unnatural sex against her will held that, treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

High Court remarked that “A spouse has a choice not to suffer and law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. [X v. X, Mat. Appeal No. 151 of 2015]

Women’s right to refuse to indulge in sexual activity


 Supreme Court stressed upon woman’s right to refuse in the case of Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein the Court expressed that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

Hear the voices of Silence | A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”.


In a recent decision delivered on 23-3-2022, the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, WP 48367 of 2018 while throwing light on equality amongst genders, laid down that,

Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the law makers to ponder over existence of such inequalities in law. For ages man donning the robes of a husband has used the wife as his chattel; […] his crude behavior notwithstanding his existence because of a woman.

A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.

Court remarked that, A man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. The contention of the senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced.


The trajectory of unheard voices is unending, yet the hope for a ray of light for the unheard is still alive.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

High Court remarked that,

If one of the spouses is refusing to accord divorce on mutual consent after having been convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse.

In the present matter the Bench after going through the pleadings and evidence, opined that the parties never developed any emotional bond or intimacy. The reason that they were living at distant places at the time of marriage had hampered developing such bonding.

High Court expressed that the marital relationship is built over the period, based on harmonious combination of differences in taste, outlook, attitude etc.

“The initial phase of the marriage lays a strong foundation for the marriage.”

 Further, elaborating the analysis, Court stated that in some jurisdictions, incompatibility is a recognized ground for divorce.

“If domestic harmony is not achieved during the initial phase of the marriage, it may lead to constant quarrels and bickering, spoiling the relationship.”

The husband approached the Court for divorce on the ground of cruelty, after realising the insurmountable hurdle in moving forward.

High Court added that,

“While deciding this case, we have outlined at the outset the incompatibility of the parties for the reason that, if we omit to refer to the incompatibility, the judgment rendered would only prove innocence or fault of either of the parties. By incompatibility, we mean that both parties failed in building the relationship and one alone cannot be attributed with the imputation of fault.”

The parties never had any cordial relationship and failed to develop any emotional intimacy.

In the present matter, Court had to decide upon cruelty as a ground for divorce.

In Court’s opinion, the wife can’t be fully blamed for the deteriorated relationship, infact the email communications depicted that the wife experienced stress and emotional turbulence.

Husband attributed wife’s behaviour of writing down things and meticulously putting down her actions in advance by cataloguing the schedules and routines as behavioral disorder. Bench denied classifying the same as a disorder in the absence of a medical evidence.

Though the Court stated expressed that, the obsessive nature of the character possessed by the wife would have led to a deteriorating relationship between the parties from the initial phase of life itself.

“Chasing happiness based on schedules instead of living in the moment, appears to be the vowed daily life routine adopted by her. She was not realistic to the fact that the secret of marital harmony lies in accepting the life as it unfolds and not becoming a stickler of the schedules or routines.”

High Court accepted that the conduct and character of the wife was unbearable to the husband.

In any matrimonial relationship, spouses may have a different outlook on the marriage based on faith, perceptions, outlook, attitudes, social ethos, etc. Fearing divorce is repugnant to his or her notion, one would refrain from the divorce based on mutual consent.

Bench observed that there was no scope for reviving the dead marriage.

The decision of Supreme Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 were referred with regard to cruelty.

Law on divorce recognized both fault and consent as a cause for separation, Court added.

When husband and wife are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation.

High Court also stated that, if the Court is able to from an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the Court can very well treat that conduct itself as cruelty.

“No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair.” 

Bench held that the parties were young and living separately since 2017, hence no interference was required in the family court order. [Beena M.S. v. Shino G. Babu, 2022 SCC OnLine Ker 778, decided on 4-2-2022]


Advocates before the Court:

For the appellant:

By Advocates:

JACOB P. ALEX

SRI. JOSEPH P. ALEX

SHRI. MANU SANKAR P.

For the respondent:

MAJIDA. S, Advocate

Experts CornerSanjay Vashishtha

The jurisprudence on the rape on the pretext of marriage is being shaped by judicial precedents across the India. Marriage is considered as sacred union between two individuals – transcending beyond physical, emotional and spiritual bounds. In ancient Hindu laws, marriage and its rituals are performed to pursue dharma (duty), artha (possessions) and kama (physical desires). With such sanctity, marriage is more than a ritual, and accordingly the present criminal jurisprudence invokes Section 90 of the Penal Code, 1860 when the consent for a sexual intercourse is sought on the false promise of marriage.

 

On the other hand, “men’s rights activists” claims that these charges framed against the accused should be equitable to “false rape cases” for various reasons. It is argued that these allegations are paradoxical and rather counterproductive insofar as rampant acquittals and discharge in such cases dilute the seriousness surrounding the penal provision relating to rape.

 

Therefore, the term “consent” becomes the subject-matter of a legal deliberation and debate. In terms of Section 90 IPC, consent given by a victim under a misconception of fact would amount to rape within the meaning of Section 375 IPC. However, what is the degree and the nature of this misconception? Is there a legal litmus test to decipher this misconception? Anthropologists and experts can vouch for the fact that wear and tear is an integral part of any relationship, marital or otherwise. In fact, quite recently, Sikkim High Court had in fact extended the benefit of doubt to the accused on the ground of “relationship going sour”1. Therefore, an endeavour is made in this article to sum up the recent developments on the jurisprudence surrounding rape on the pretext of marriage and identify legal parameters which could potentially decipher the key difference between actual inducement leading to rape on the pretext of marriage or not.

 

To start with, the Supreme Court in Sonu v. State of U.P.2 quashed an FIR under Section 376 IPC between former lovers inter alia on the ground that “there is no allegation that the promise to marry given to the second respondent (prosecutrix) was false at the inception”. The decision, authored by HMJ Dr D. Y. Chandrachud cited Pramod Suryabhan Pawar v. State of Maharashtra3 wherein the following was laid down by the Supreme Court as a litmus test to govern such matters:

 

  1. 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.

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

 

In Sonu v. State of U.P.4 the prosecutrix in her Section 164 CrPC statement admittedly claimed that the physical relations were consensual and were an outcome of a “love affair” between the two, however, on account of the accused promising to marry her. Subsequently, the family of the accused refused to have their marriage solemnised and so did the accused.

 

The fundamental issue that crops up from the Sonu judgment5 and those alike in genesis in terms of facts and circumstances is the presence of a intimate/love affair between the complainant and the accused. It is seldom the case that the accused has either married someone during the period of alleged inducement or was already in an active relationship with someone else or has married someone else either during or immediately following the refusal to marry which prompts law enforcement agencies to register an FIR under Section 376 IPC.

 

In this regard, the Full Bench of the Supreme Court headed by HMJ Rohinton Nariman had recently in Maheshwar Tigga v. State of Jharkhand6 arising out of SLP (Crl.) No. 393 of 2020 observed:

 

  1. 10. They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 9-4-1999.

 

The Court further observed in Maheshwar Tigga case7 :

  1. 14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. (Emphasis added) The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

 

The Supreme Court has, especially in the last decade, passed several landmark decisions in an endeavour to frame policy related jurisprudence on this subject matter. From holding that the victim was not a “gullible woman of feeble intellect” in Vinod Kumar v. State of Kerala8 to reiterating the distinction between a promise which is unfulfilled and a promise which is false from the very beginning in Anurag Soni v. State of Chhattisgarh9 in the Supreme Court has made it unambiguous and coherent that in order to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established10:

 

  1. 18. … The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

 

Therefore, in other words, while the Supreme Court has identified a fine distinction between matters where there is an intention to deceit at the outset, it is paramount that concept of regular wear and tear of relations as otherwise evident from matrimonial matters is required to be infused in this jurisprudence, literally or otherwise.

 

In the recent past, my professional experience as a defence counsel in various such matters spanning from trial courts to the Supreme Court and as a consultant to a law enforcement agency, has enabled me to identify the following parameters which could further enable the investigating officers from identifying a case which merits a final report in the form of a charge-sheet in contrast to a final report under Section 173 CrPC in the form of a closure report: –

 

  1. In some matters, the FIR under Section 376 IPC is in fact an outcome of a regular wear and tear of relationship spanning over several years, including live-in relationships, which as per the Supreme Court in Velusamy v. D. Patchaiammal11, following certain conditions has the sanctity of presumption of marriage. The facts highlighting gradual wear and tear of relations leading to a break-up/refusal to marry could be a relevant identifier with regards to the primary litmus test laid down by the Supreme Court in this regard.
  1. In most of the matters, the accused (as I would only know their narrative – as a defence counsel) has neither married anyone else nor had any other relationship during the subsistence of their relationship with now complainant. They were neither actively pursuing matrimonial alliances through other online/offline modes.
  1. In a case, the complainant herself did not sought marriage till a particular timeline after which the accused sought time – and the same resulted in an FIR under Section 376 IPC.
  1. In one matter, one of my clients who had cleared one of the toughest examinations in the country was prevented from joining and rendering his services on account of the said FIR under Section 376 IPC. In this matter the complainant in statement recorded under Section 164 CrPC had stated that the accused had promised to marry her after clearing his examination and programmes. One could say this was a premature FIR, but be as it may, it is the prerogative of the complainant to choose the time and place of recording of such first information report.

 

However, an important caveat may be highlighted at the outset. The idea is not to promote closures or highlight one-sided anecdotal experience – but to highlight that the growing number of such acquittals/quashing’s and overshadow matters which would otherwise merit trials and convictions. This also tends to diminish the sensitivity and seriousness with which investigation is to be conducted in such matters, in my personal view and experience.

 

Its about time that parameters be laid down, withstanding the fact that every criminal case/FIR is unique and peculiar directing the investigating officers to consider, atleast some of the aforesaid while choosing to file a closure, as final reports in the form of charge-sheets, at times are mechanically filed in this regard.


† Sanjay Vashishtha is a practicing counsel at the Supreme Court of India, LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford. He is serving as a counsel/special counsel and consultant for several law enforcement and public sector institutions.

1 Makraj Limboo v. State of Sikkim, 2021 SCC OnLine Sikk 1.

2 2021 SCC OnLine SC 181.

3 (2019) 9 SCC 608, 618, 620.

4 2021 SCC OnLine SC 181.

5 2021 SCC OnLine SC 181.

6 (2020) 10 SCC 108, 114.

7 (2020) 10 SCC 108, 115.

8 (2014) 5 SCC 678.

9 (2019) 13 SCC 1.

10 Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, 620.

11 (2010) 10 SCC 469.

Case BriefsHigh Courts

Bombay High Court: While addressing a matter with regard to “outraging modesty of a woman”, M.G. Sewlikar, J., expressed that,

“…touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to a violation of modesty of a woman.”

On being aggrieved by the decision of Additional Sessions Judge present matter reached this Court.

Factual Matrix

The victim alleged that she and her grandmother in law were the only persons in their house as her husband had gone to the village. Applicant/accused lived in the house adjacent to the house of the victim. Later, the applicant had enquired with the victim when her husband would be returning.

At night around 11 p.m., the victim felt that someone was touching her feet and on waking up she found the accused/applicant sitting near her feet on her bed. Hence the victim shouted because of which her grandmother in law woke up and she raised shouts.

Therefore, the applicant ran away, and neighbours gather.

Next day morning victim’s husband returned and then she lodged a police report against the accused.

Analysis, Law and Decision

High Court cited the decision of Supreme Court in Rupan Deol Bajaj v. K.P.S Gill, (1995) 6 SCC 194, wherein the word ‘modesty’ was defined.

In Court’s opinion, the act of the applicant was capable of shocking the sense decency of any woman.

In the present matter, the applicant was sitting at the feet of the victim and had touched her feet, the said behaviour smacked of sexual intent, otherwise, there was no reason for the applicant to be in the house of the victim at such an odd hour of the night.

The Bench stated that the applicant did not enter the house of the victim with any sublime motive, he had ensured from the victim that her husband would not be present in the house that night.

The above-said incident clearly indicated that the applicant had gone there with sexual intent and violated the modesty of the informant.

Hence, the trial court did not commit any error in holding that the appellant molested the victim.

Therefore, the criminal application was dismissed. [Parmeshwar v. State of Maharashtra, 2021 SCC OnLine Bom 6144, decided on 21-12-2021]


Advocates before the Court:

Advocate for Applicant : Mr. Pratik Bhosle

Advocate/APP for Respondent-State: Mr. S.W. Munde

Advocate for R/2: Vishal A. Bagal

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., examines whether on mere refusal to marry the offence of cheating be constituted under Section 417 of the Penal Code, 1860.

Additional Sessions Judge had decided that the appellant (referred to as ‘accused’) was guilty of offences punishable under Section 417 of the Penal Code, 1860.

Instant appeal was filed against the above-stated decision.

Prosecutrix had lodged an FIR alleging that the accused had sexual relationship with her with the promise of marriage and he subsequently declined to marry her. Crime against the accused was registered under Sections 376 and 417 of the IPC.

Analysis, Law and Decision

High Court noted that the prosecutrix was known to the accused and had a sexual relationship for over about 3 years.

Evidence on record revealed that the sexual relationship between the prosecutrix and the accused was consensual.

The accused had been held guilty of the offence under Section 417 IPC solely for the reason that he refused to marry the prosecutrix, hence the question that arose was whether in such circumstances refusal to marry would constitute the offence of cheating?

In the Supreme Court decision of Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, it was examined whether the prosecutrix had consented to the physical relationship under any misconception of fact with regard to promise of marriage or whether her consent was based on fraudulent misrepresentation of marriage. The Supreme Court has held that under Section 90 of IPC a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.

High Court stated that the evidence of the prosecutrix did not indicate that she had sexual relationship with the accused under the misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage.

Elaborating further, the Bench also noted that there was no evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 IPC, there mere refusal to marry would not constitute offence under Section 417 IPC.

Therefore, the impugned judgment could not be sustained in view of the above discussion and the appeal was allowed. [Kashinath Narayan Gharat v. State of Maharashtra, 2021 SCC OnLine Bom 5910, decided on 9-12-2021]


Advocates before the Court:

Ms Vrishali Raje for the Appellant.

Mr. S.V. Gavand, APP for Respondent -State

Case BriefsHigh Courts

Calcutta High Court: While addressing a matter under Section 376 of Penal Code, 1860 Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., observed that, it cannot be said that appellant had no intention to marry from the inception of the relationship, infact the relationship did not fructify due to obstruction from the elders of the family.

The instant appeal was directed against the decision passed by the lower court arising out of Sessions Case under Section 376 of the Penal Code, 1860.

Background

Prosecution alleged that the appellant cohabited with the victim girl who was a minor, on the false promise of marriage, due to which the girl became pregnant.

When the girl asked the appellant to marry, he evaded the issue. The said matter came to the knowledge of the family members, after which a salish was held, wherein the appellant refused to marry the victim girl due to the strong objection of his family members.

In view of the above, first information report was filed and charges were filed against the appellant under Sections 376/493 of IPC.

Analysis, Law and Decision

Bench noted that the evidence on record clearly established that the appellant had cohabited with her on the promise of marriage.

However, Court found it was difficult to accept that the initial cohabitation was forceful as such allegation was significantly absent in the FIR by PW1. It was argued that the appellant had agreed to marry her, but the marriage could not fructify due to the resistance of his parents. Hence, it could not be said that the appellant did not intend to marry her at the time when they cohabited.

Court found substance in the above contention.

Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.

Bench observed the evidence that the appellant and the victim girl wanted to marry each other and cohabited and as a result, she became pregnant but due to the resistance of the parents of the appellant marriage was not held.

It appeared that the date of birth of the victim was 18-3-1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent.

Therefore, Court opined that it cannot be said that the appellant did not have the intention to marry the victim, in fact the marriage could not fructify due to obstruction from elders in the family.

The materials on record also indicated that the cohabitation was consensual.

Concluding the matter, the conviction and sentence of the appellant was set aside and the appellant was acquitted. [Saddam Hussain v. State of West Bengal, 2021 SCC OnLine Cal 3012, decided on 7-12-2021]


Advocates before the Court:

For the appellant: Debarshi Brahma, Adv.
Ms. Ankita Das Chakraborty, Adv. Mr. Sagnik Mukherjee, Adv.

For the State: Mr. S. G. Mukherjee, P.P. Ms. Amita Gour, Adv.
Mr. N. P. Agarwal, Adv.

Kerala High Court
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, 2021 SCC OnLine Ker 4720, 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] 3 WLR 1381, 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)

Kerala High Court
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.

Kerala High Court
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