Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:

There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.

Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.

Advocates who appeared in the present matter:

Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.

Mr Ajay Patil, A.P.P. for the State.

Mr Satyam Nimbalkar for the intervener.

Forceful Sexual Intercourse

Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.

Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.

Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.

Distressed Mental Condition

Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.

Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.

Decision

In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.

Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.

Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.

The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.

Further the Bench added that,

“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”

Court also quoted Warren Buffet,

“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”

above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.

On granting bail to the applicant, Court stated that,

Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.

Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted bail to a person accused for alleged offence of committing rape repeatedly, which turned out to be consensual on perusal of statement by the victim to the medical officer.

Petition was filed with regard to enlargement on bail for the alleged offences punishable under Section 376(2)(n) of Penal Code, 1860 read with Section 6 of the Protection of Children from Sexual Offences Act.

Victim in the present case was 17 yeas and 8 months old at the time of the incident.

Bench on perusal of the final report found that victim had informed the medical officer that she has sexual contact for multiple times with the applicant voluntarily.

Further it appeared that till her pregnancy she did not disclose the incident of alleged sexual assault.

Victim alleged that applicant had promised to marry her and therefore she had succumbed to his desires. Court had made efforts to settle the marriage of victim with the applicant, but on interviewing her she flatly denied to marry the applicant.

Thus in the above stated circumstances, Court concluded that it would be unreasonable to hold that victim did not possess mental capacity to actively understand the nature and consequences of the act as to which she had consented.

“Her statement to Medical Officer also reinforces the fact that she was in love with the applicant and voluntarily submitted to the physical desires of the applicant.”

Hence, applicant is directed to be released on bail with certain conditions.[Manish R. Mishra v. State of Maharashtra, 2020 SCC OnLine Bom 778 , decided on 13-07-2020]

Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar, J., addressed a matter in which a 59 year old man was accused of raping a minor girl and the issue that has been dealt primarily in the matter is with regard to consent in the context of rape.

Conviction and Sentence of the appellant were challenged in the present appeal.

What is the accusation?

Accused had committed rape on a minor girl aged 14 years belonging to Scheduled Caste and impregnated her on various days.

Offences alleged were punishable under Section 376 of Penal Code, 1860 and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Decision of the lower Court

Court below on perusal of the record found that the accused had sexual intercourse with the victim girl and impregnated her.

Although the Court found that the prosecution did not prove the age of the victim girl and failed to establish that the case is one that falls under the sixth description in the definition of ‘rape’ in terms of Section 375 of the IPC as it stood then, it held that in the absence of any case for the accused that the sexual intercourse he had with the victim girl was consensual, the accused is guilty of the offence punishable under Section 376 of the IPC.

Point formulated for decision

Whether the prosecution established that the sexual intercourse between the victim girl and accused was without her consent?

Court noted that the present case was decided prior to the introduction of Section 114A of the Evidence Act.

Victim Girl’s deposition

While she was watching television, the accused sent his granddaughter away to a shop, closed the door of the house, pulled her to the adjacent room, made her lie down in a cot, removed her clothes and inserted his genital organ into her vagina after removing his clothes.

Understanding the concept of consent in the context of rape

Mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, 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 freely exercised a choice between resistance and assent.

Sexual assaults including rape are crimes of gender inequality.

Court added to its conclusion that, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.

Accused was a fatherly figure to the victim girl, leaving apart the age factor there is was doubt with the class in which she was studying during the relevant period. She used to go the accused’s place for watching television and taking advantage of the situation accused had made sexual advances to her.

Accused’s case was only that the admitted conduct of the victim girl in going to the house of the accused as when desired by him subsequently would indicate that the latter instances of sexual intercourse were consensual.

Thus, Court in view of the above concluded that in a situation as was in the present matter, conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse. [Thankappan P.K. v. State of Kerala, 2020 SCC OnLine Ker 2587 , decided on 29-06-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ., dismissed a criminal leave petition filed by the State against the order of the trial court whereby it had acquitted the respondent who was accused of raping the prosecutrix (victim).

The respondent was accused of committing rape on the prosecutrix. The trial court, however, acquitted the respondent concluding that from circumstances of the case, it could not be deduced conclusively that the victim was taken away by the accused by deceitful means and that the sexual relations between them were forcible. Aggrieved thereby, the State filed the instant petition.

Aashaa Tiwari, APP, appeared for the State. It was the case of the prosecution that respondent-accused established physical relationship with the prosecutrix on the false pretext of marriage.

It was noted by the High Court that the prosecutrix had admitted that she and the respondent had known each other for more than one year and they had physical relations prior to the present complaint being filed by her. It was also found that the prosecutrix had voluntarily accompanied the respondent and the allegation that the physical relations were made without her consent was not correct.

Relying on Pramod Suryabhan Pawar v. State of Maharashtra, 2019 SCC OnLine SC 1073, the High Court observed: “…to establish whether “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established namely that the prosecution proves beyond doubt that the Respondent-accused had established sexual relations with the Prosecutrix on the basis of a false promise of marriage given in bad faith with no intention of being adhered to at the time it was given. Further, the false promise itself must be of immediate relevance, or bear a direct nexus to the Prosecutrix’s decision to engage in the sexual act.”

In the instant case, the Court also noted that the neighbours of the respondent-accused had stated that the prosecutrix and the respondent-accused had moved an application before the local SDM for registration of their marriage. Consequently, the Court was of the view that the condition precedent of the physical relationship having been established on the false pretext of marriage was not made out.

In such view of the matter, the High Court found no warrant to interfere with the order of the trial court. Accordingly, the criminal leave petition filed by the State was dismissed. [State v. Ramji Ram, 2020 SCC OnLine Del 316, decided on 20-01-2020]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Hemant Kumar Srivastava and Prabhat Kumar Singh, JJ. rejected a letters patent appeal on the admission stage itself to be allowed to solemnize the second marriage during the subsistence of the first marriage and found it being having no merits to stand.

In the instant case, the appellant married his second wife during the lifetime of his first wife. When a departmental proceeding was initiated against him, he produced forged documents. Further, he was dismissed from service. Consequently, he challenged it. Later not only his appeal against the dismissal order but also its further revision against it was also dismissed by a Single Judge Bench.

The counsel for the appellant, Arun Kumar pled that the appellant solemnized his second marriage with Sunita Upadhayay (second wife) with the permission and consent of his first wife which the Disciplinary Authority and the Single Judge Bench failed to take into consideration.

The respondent’s counsel, Manoj Kumar Singh contended that the aforesaid authorities had considered all the aspects of the matter. Moreover the appellant was also charged for forgery.

In view of the above, the Court opined that the Single Judge Bench had discussed the case in detail and passed the impugned judgment. It observed that even if the first wife consented to the appellant’s marriage, it gave no right to the appellant to solemnize his second marriage. Moreover, the appellant failed to prove any violation of natural justice or any violation of rules. Further, the said factual aspect could not be looked into this Letters Patent Appeal. In view thereof, the appeal was dismissed.[Binod Kumar Singh v. Union of India, 2019 SCC OnLine Pat 2363, dated on 02-12-2019]

Case BriefsSupreme Court

Supreme Court: In an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, the 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ has set aside the verdict and held that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual.

The Court said,

“where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”

The Court was hearing the case where the respondent had taken inappropriate pictures of the appellant while she was asleep. He had gone to visit the appellant when she was unwell. Taking advantage of the situation, he started blackmailing her to make viral her pictures and to terminate her employment. He then started committing rape on her. When she resigned from the job, he contacted her fiancé and told him is not of good character, she had physical relationship with him and with other boys. When the fiancé refused to meet him, he sent a cover to his residence containing her nude/inappropriate pictures. The parties later entered into a written agreement wherein it was agreed that the dispute between the parties is settled and that the respondent has allegedly paid a huge amount to the appellant.

The Court noticed that whether the respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further whether he has continued to interfere by calling appellant’s fiancé or not are the matters for investigation. It, hence, held that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC.

Holding that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual, the Court said,

“When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated.”

[Miss XYZ v. State of Gujarat, CRIMINAL APPEAL NO.1619 OF 2019, decided on 25.10.2019]

Case BriefsHigh Courts

Allahabad High Court: Applicant filed an application under Section 482 of Criminal Procedure Code which was contemplated by Dinesh Kumar Singh, J. where the prayer was to quash the Charges under certain Sections of Penal Code, 1860.

The applicant was charged under Sections 366, 376, 328, 506, 406 of IPC, in which the Chief Judicial Magistrate had taken cognizance. Santosh Yadav, counsel for the applicant argued that the accused was falsely implicated by the respondent-complainant who was the mother of the victim, the main reason cited by the counsel behind such baseless complaint was alleged desire to the victim to marry applicant. The counsel submitted the statements of the complainant and highlighted that she had stated that ‘she suspected the involvement of accused in the instant case.’ Another issue highlighted was alleged kidnapping by the accused-applicant, it was submitted that the victim was never abducted as she herself went to the police station to register the complaint. The attention of the Court was also drawn towards the other statement of the victim, recorded under Section 161 of CrPC. where the allegation of rape had been made upon the accused applicant who after committing rape had given assurance to marry her and subsequently when she asked to marry he committed assault and refused to marry.  In addition to these aforementioned evidences the applicant submitted an injury report, where it was stated that no marks to injury were found on the victim. Lastly, it was submitted by the learned counsel for the applicant that many facts were ignored by the Investigating Officer and the charge-sheet had been submitted in a routine manner, which was nothing but an abuse of the process of Court and in the interest of justice, the charge sheet deserved to be quashed.

Bhaiya Ghanshyam Singh, Advocate General for the state, had vehemently opposed the prayer for quashing of the charge- sheet and had stated that the evidence which was collected by the Investigating Officer cannot be looked into in this Application under Section 482 CrPC as the same will be required during the trial. It was submitted that High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of CrPC. “because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties.”

The Court held that the Investigating Officer had recorded the statements of as many as five witnesses have submitted the charge-sheet. It further opined that “the truthfulness of the statements of the witnesses cannot be scrutinized in Application under Section 482 CrPC” The Court relied upon the Judgment in Anurag Singh v. Chhatisgarh, 2019 SCC OnLine SC 509, where the Supreme Court had held that ‘position of law, was apparent that whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not, was a subject matter of evidence, which is only possible to be decided after trial.’

Hence, the prayer for quashing the FIR was refused and the application was dismissed.[Kamal Pal v. State of U.P., 2019 SCC OnLine All 3539, decided on 25-09-2019]

Case BriefsHigh Courts

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsSupreme Court

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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