Registration of fir
1) A First Information Report (the impugned FIR) was registered against the appellant at the instance of the second respondent for the offences punishable under Sections 376(2), 377, 504, 506 of the Indian Penal Code (for short, ‘IPC’) and various clauses of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989.
Factual aspects
Case of prosecution: Physical relationship promising marriage and pregnancy
2) The impugned FIR was registered based on the second respondent’s complaint dated 23rd February 2018 filed with Sadar Police Station, Nagpur. The said complaint disclosed that the appellant and second respondent got acquainted with each other in the year 2011. The second respondent was, at the relevant time, employed in a beauty parlour. The appellant used to visit the same parlour to undergo a hair-cutting course. The second respondent’s case is that in June 2011, the appellant proposed her. She agreed, and after that, they started meeting. The allegation made by the second respondent is that an effort was made in the year 2011 by the appellant to maintain a physical relationship with her, but she prevented him from doing so. However, she stated that in the year 2012, by giving a false promise of marriage, the appellant had sexual intercourse with her on a number of occasions. In February 2013, the second respondent realised that she was pregnant. Therefore, in March 2013, the appellant took the second respondent to a hospital where abortion was done. Even thereafter, the appellant continued his physical relationship with the second respondent. It is stated by the second respondent that in July 2017, there was an engagement between her and the appellant. Even after the engagement, the appellant continued to maintain a physical relationship with the second respondent
3) In December 2017, when the second respondent realised that she was pregnant, the appellant told her that they would get married very soon. In view of the said assurance, the second respondent did not undergo an abortion. She was treated for pregnancy in a hospital at the instance of the appellant. The allegation of the second respondent is that on 18th January 2018, she saw photographs of the engagement ceremony of the appellant with another woman in his cell phone. The second respondent stated that a day before the date on which the complaint was filed, she was informed that the appellant had married another girl on 22nd February 2018.
Case of the appellant: Appellant and respondent got married
4) The case of the appellant is that there was a Nikah between him and the second respondent on 20th January 2017 at Junglee Peer Baba Dargah. The case of the appellant is that he could not produce the original Nikahnama, but a copy thereof was seized by the police. The case of the appellant is that in the passport issued to the appellant on 17th August 2017, the name of the second respondent appears as the wife of the appellant.
Consideration of submissions
Compromise failed though deposit of rs. 10 lakh rupees made by appellant
6) We may note here that the appellant had volunteered to deposit a sum of Rs. 10 lakhs with the High Court during the pendency of the petition before the High Court. This Court tried to explore the possibility of a settlement between the appellant and the second respondent. However, the settlement could not materialise.
Proposition of law on physical relationship based on misconception: Consent of women based on misconception is immaterial and not voluntary hence rape
7) Now, the question is whether a case for quashing the criminal proceeding is made out. For that purpose, we are referring to the material which forms a part of the charge sheet. In view of the provisions of Section 375 of the IPC, if the victim of the alleged offence of rape is not under 18 years of age, maintaining a sexual relationship with her consent, is not an offence. As held by this Court in the case of Anurag Soni [(2019) 13 SCC 1], if the consent of the victim is based on misconception, such consent is immaterial as it is not a voluntary consent. If it is established that from the inception, the consent by the victim is a result of a false promise to marry, there will be no consent, and in such a case, the offence of rape will be made out.
Facts on evidence
8) The second respondent was admittedly more than 18 years old when the relationship commenced. We have carefully gone through the complaint dated 23rd February 2018 made by the second respondent based on which the impugned FIR was registered. Acquaintance between the appellant and the second respondent started in the year 2011. In June 2011, the appellant proposed her, and she accepted the said proposal. In fact, according to the version of the second respondent, their physical relationship commenced in 2012 and continued till 2017. In February 2013, the second respondent underwent an abortion. In July 2017, according to the case of the second respondent, there was an engagement ceremony. In December 2017, the second respondent was pregnant. According to her, as the appellant had assured to marry, she did not agree for abortion. The complaint was filed by the second respondent on 23rd February 2018 as she allegedly learned that on 22nd February 2018, the appellant was married to another woman.
Case of the victim is unbelievable
9) When the complaint was filed, the age of the second respondent was 24 years. Her year of birth is recorded as 1994. The averments made in her complaint go to show that their physical relationship started in 2012. Though she claimed that it was a forced relationship, she did not make any grievance about it till February 2018. In February 2013 and in December 2017, the second respondent was pregnant. It is not the case of the second respondent that from February 2013 to December 2017, the appellant forced the second respondent to maintain the physical relationship. In 2013, the relationship resulted in pregnancy. Still, it continued till 2017. In fact, according to the second respondent, in July 2017, there was an engagement ceremony between the appellant and the second respondent. Therefore, in the facts of the case, it is impossible to accept that the second respondent allowed the physical relationship to be maintained with her from 2013 to 2017 on the basis of a false promise to marry.
Nikah (marriage) happened between the appellant and the victim
10) Now, coming to the Nikahnama dated 20th January 2017, it is true that the original Nikahnama could not be produced. However, the seizure panchnama dated 21st September 2018 (Annexure: P-14) records that a carbon copy of the Nikahnama was seized. The statement of one Burhanuddin was recorded by the police who was present at the time of Nikah. He confirmed the fact of performance of Nikah between the appellant and the second respondent.
12) If this material, which is a part of the investigation papers, is perused carefully, it is obvious that the physical relationship between the appellant and the second respondent was consensual, at least from 2013 to 2017. The fact that they were engaged was admitted by the second respondent. The fact that in 2011, the appellant proposed her and in 2017, there was engagement is accepted by the second respondent. In fact, she participated in the engagement ceremony without any protest. However, she has denied that her marriage was solemnised with the appellant. Taking the prosecution case as correct, it is not possible to accept that the second respondent maintained a physical relationship only because the appellant had given a promise of marriage.
Quash
13) Thus, in our view, the continuation of the prosecution in the present case will be a gross abuse of the process of law. Therefore, no purpose will be served by continuing the prosecution.
16) The appellant shall deposit a further sum of Rs. 5 lakhs with the Sessions Court at Nagpur within a period of six weeks from today. The appellant shall file a compliance affidavit alongwith documents in this Court within a period of 7 weeks from today.
Party
SHEIKH ARIF …APPELLANT VERSUS THE STATE OF MAHARASHTRA & ANR …RESPONDENTS – CRIMINAL APPEAL NO. 1368 OF 2023 – January 30, 2024
Further study
https://demonew.section1.in/not-rape-though-the-marriage-was-solemnized-by-force-the-relationship-between-them-was-only-after-the-marriage-as-such-section-376-ipc-does-not-emanate-against-the-husband/
https://demonew.section1.in/false-promise-to-marry-marrying-without-witness-does-not-imply-a-fraudulent-marriage-and-having-sex-thereafter-was-the-consensual-one/
https://demonew.section1.in/whether-sexual-intercourse-between-a-man-and-his-wife-being-a-girl-between-15-and-18-years-of-age-is-rape/
https://demonew.section1.in/rape-of-his-own-9-year-old-daughter-supreme-court-awarded-minimum-20-years-as-life-sentence-without-remission/
https://demonew.section1.in/rape-not-proved-by-the-prosecution/
