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Without disclosing about first marriage and obtaining consent for sex in a second marriage is a Prima facie case of rape: Bombay High Court

The Bombay High Court on 26th July 2022, refused to dismiss the ‘husband’ in a rape case filed by a Marathi actress and held that consent gained for sex in a second marriage without disclosing the first marriage would prima facie constitute rape, through the single bench of Justice N. J. Jamadar in the case of Siddharth Narendra Banthia vs State of Maharashtra (Writ Petition No. 3527 of 2021).

 

FACTS OF THE CASE:

The present petition was filed under Article 227 of the Indian Constitution, challenging the legality, propriety, and correctness of an order issued by the learned Additional Sessions Judge, Pune on 3rd September 2021 on an application, in Sessions Case No. 188 of 2019, in which the petitioner’s prayer to be discharged from prosecution was denied.

The prosecutrix is a professional actress. She found out about her husband’s alleged bigamous activities when photos of their wedding anniversary party appeared in the press. Soon after, the first wife approached her. In 2013, the actress filed an annulment petition in Family Court and filed an FIR against the petitioner under IPC sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i), and 494. The investigation was concluded by the police, and a chargesheet was filed against the petitioner.

The petitioner filed a discharge application, alleging that the charges against him are ambiguous and that the prosecutrix’s statement contradicts the annulment petition. The application was denied by the Additional Sessions Judge, who stated appropriate reasons to proceed against the petitioner. As a result, the present petition was filed before the court.

The counsel for the petitioner argued that there is no evidence that the actress’s first marriage was properly dissolved. As a result, the prosecution’s contention that the petitioner obtained her consent by pretending to be unmarried is disproved. Furthermore, no rape case has been established because there is no proof that physical contact with the petitioner occurred without the prosecutrix’s consent. The petitioner contends that the marriage ceremony and anniversary celebration were purely staged and that he and the prosecutrix were never married and never lived together as husband and wife.

The APP emphasized the material on the record and contended that there are sufficient reasons for the trial. The accused’s defence should not be considered at this time.

The prosecutrix’s counsel relied on Minakshi Bala v. Sudhir Kumar and Others [(1994) 4 SCC 142] to argue that the petition is not maintainable. Once the charges are filed, the discharge petition cannot be granted. She further claimed that the facts of the case fall within Section 376’s “fourthly” provision.

JUDGEMENT:

The court relied on the judgement of Union of India v. Prafulla Kumar Samal and Anr. [AIR 1979 SC 366], which stated that a strong suspicion against the accused is sufficient to construct a complaint against him. The court noted that there is enough evidence to establish that the petitioner and respondent were married and lived together as husband and wife.

The court noted that the prosecutrix stated she married the petitioner solely because he claimed to be single. His marriage to the prosecutrix is null and void since his first wife is still alive. Despite knowing that he is not the prosecutrix’s husband, the petitioner reportedly had physical relations with her.

The court further relied on the case of Bhupinder Singh v. Union of Territory of Chandigarh [(2008) 8 SCC 531], which had similar facts, and held that the ‘fourthly’ provision applies to the facts. The court stated that the ‘fourthly’ clause of Section 376 will apply where a) the man knows he is not the prosecutrix’s husband and the consent is given in mistake, and b) the prosecutrix believes she is lawfully married to the man.

As a result, the court concluded that if the aforementioned twin conditions are prima facie proved, the challenge to the prosecution on the grounds that the physical relations occurred with the prosecutrix’s consent does not justify acceptance. Thus, it held that a prima facie case against the petitioner had been made.

Accordingly, the petition was dismissed.

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JUDGEMENT REVIEWED BY NIDHI KUMAR

 

 

Read the full judgement.

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