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

Challenge

3. This appeal challenges the order dated 11th October 2022, passed by the High Court of Uttarakhand in C-482 No.666 of 2020, vide which the application filed by the present appellant for quashing of the proceedings under Sections 376 and 506 of the Indian Penal Code, 1860 (for short, “IPC”) came to be rejected.

Facts

4. The undisputed facts which lead to filing of the present appeal are as under:-

The appellant and complainant were in relationship against their parents wish

4.1 The appellant was in relationship with the complainant. It appears that the relationship of the appellant with the complainant was against the wishes of the parents but they decided to reside together.

Father of the girl filed Habeas Corpus writ petition

4.2 The father of the complainant filed a Habeas Corpus Petition No.27 of 2018 before the High Court alleging therein that his daughter was illegally detained by the appellant herein and for a direction for production of the complainant.

Hon’ble High court’s order based on its interaction with the girl

4.3 In the said proceedings, the High Court, vide order dated 24th July 2018, observed thus:-

“2. In this Habeas Corpus petition, this Court vide order dated 19.07.2018 had asked the girl to be produced before this Court. The girl, namely, Ms. Aisha is present in person before this Court. Her date of birth is twenty years. This court also had an occasion to interact with the girl. She seems to be articulate, and an adult who can take decisions for herself. She has given a categorical statement before this Court that she wants to go with respondent no.3, who is her husband. Her presence was hence exempted.

3. In view of the above, nothing further needs to be done by this Court. The petition fails and it is hereby dismissed. Ms. Aisha is set free to go with her husband, as this is her wish as stated before this Court in person by her.”

After a considerable time complainant (girl) separated from appellant and register the FIR against him

4.4 It appears that thereafter the appellant and the complainant resided together for a considerable time. 2 However, there was a discord between them and after that they started residing separately. Thereafter, the complainant filed an FIR being No. 474 of 2019 before the Police Station Bhagwanpur, District-Haridwar for the offences punishable under Section 376, 377 and 506 of the IPC.

Analysis

Complainant (girl) stated before the Hon’ble High Court single judge as if she was forced to marry the appellant

6. When the matter was heard by the learned Single Judge of the High Court, the learned Judge, as can be seen from the impugned order, had also interacted with the complainant. A perusal of the impugned order would clearly reveal that the complainant had stated before the learned Judge that she was forced to solemnize the marriage against her wishes with the appellant herein. It is, thus, clear from her own statement that she was forced to marry the appellant. As such, the relationship between the appellant and the complainant was after the said marriage.

Section 376 IPC does not make out

7. It could thus be seen that even if the statement made by the complainant is taken on its face value, the ingredients to constitute the offence under Section 376 IPC are not made out.

Complainant filed affidavit stating that she obtained divorce

9. It is thus clear that now even the complainant herself does not want to proceed further with the proceedings. She has stated in her affidavit filed before this Court that they have mutually obtained a divorce and it was finalized by Talaq-E-Khula on 7th September 2022.

12. In the facts and circumstances of the case, we find that the continuation of the criminal proceedings would not be in the interest of justice.

13. The impugned order dated 11th October 2022 passed by the High Court so also the FIR No. 474 of 2019 are quashed and set aside.

14. The appeal is accordingly allowed.

Parties

MOHD. JULFUKAR …APPELLANT(S) VERSUS THE STATE OF UTTARAKHAND AND ANOTHER …RESPONDENT(S) – CRIMINAL APPEAL NO. 174 OF 2024 (Arising out of SLP(Crl.) No.10842 of 2022) – JANUARY 09, 2024 – 2024 INSC 38

https://main.sci.gov.in/supremecourt/2022/35972/35972_2022_3_23_49443_Judgement_09-Jan-2024.pdf

Mohd. Julfukar vs. The State of Uttarakhand – 35972_2022_3_23_49443_Judgement_09-Jan-2024

Further study

False promise to marry: Marrying without witness does not imply a fraudulent marriage and having sex thereafter was the consensual one

Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

Man who raped his own 9 years daughter