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Medical Negligence Laws in India.

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Abstract:

This article delves into the intricate web of medical negligence laws in India, shedding light on the legal intricacies, consequences, and responsibilities entailed in this multifaceted domain. With a spotlight on the pivotal role of regulatory bodies like the Medical Council of India (MCI) and the establishment of consumer courts, it explores the avenues through which medical negligence cases are addressed. Additionally, it examines the surge in medical malpractice insurance, the emergence of alternative dispute resolution (ADR) mechanisms, and the evolving jurisprudence surrounding medical negligence in India. As India navigates the dynamic landscape of healthcare, this article serves as a valuable resource for healthcare professionals, policymakers, and individuals seeking a deeper understanding of medical negligence laws in the country. With a commitment to balance the rights of patients and healthcare providers, India’s evolving legal framework strives to ensure accountability and uphold the highest standards of medical care.

Introduction:

The realm of medical practice carries profound implications for both healthcare providers and patients, intertwined with intricate legal considerations. In India, the landscape of medical negligence laws has undergone significant evolution, reflecting the nation’s commitment to strike a delicate equilibrium between medical autonomy and patient rights. As the country continues to place a heightened premium on the sanctity of human life and well-being, understanding the contours of medical negligence laws becomes an imperative for healthcare professionals, legal practitioners, policymakers, and individuals alike. Medical negligence, though not explicitly defined in Indian statutes, represents a pivotal aspect of the legal framework governing the healthcare landscape. As such, this article endeavours to provide clarity by outlining the fundamental elements of medical negligence, the duty of care that doctors owe to their patients, and the standards by which their actions are assessed. By drawing from select judicial opinions of India’s higher courts, it elucidates the consequences of medical negligence, categorizing them into criminal liability, monetary liability, and disciplinary action, each with its unique implications. Furthermore, the article delves into the intricate web of informed consent, emphasizing the pivotal role of patient autonomy in healthcare decisions. It explores the boundaries within which medical practitioners must operate, recognizing that while they possess expertise, the ultimate choice should rest with the patient, guided by adequate information and consultation. As the legal landscape surrounding medical negligence in India continues to evolve, this article navigates through advisory guidelines and safeguards, as enunciated by the Supreme Court. It highlights the importance of preserving the sanctity of professional judgments while safeguarding patient interests. Additionally, it discusses the safeguards put in place to protect healthcare providers from frivolous and unjust criminal prosecutions, including the necessity of obtaining independent medical opinions. In a rapidly changing healthcare ecosystem, this article aims to serve as a beacon of clarity, providing insights, guidance, and an understanding of the legal nuances that underpin medical negligence laws in India. It acknowledges the dual responsibility of ensuring accountability for medical professionals and safeguarding the autonomy and well-being of patients. As we embark on this journey through the realm of medical negligence laws in India, we invite readers to explore the evolving landscape where medicine and the law intersect, forging a path toward equitable healthcare for all.

Overview of the Consequences:

Within the intricate framework of medical negligence laws in India, the ramifications of legally cognizable medical negligence can be broadly categorized into three distinct consequences: criminal liability, monetary liability, and disciplinary action. These consequences are a result of breaches of duty or wrongful acts committed by healthcare professionals in the course of their practice, and they play a pivotal role in ensuring accountability and safeguarding patient interests within the healthcare landscape.

Criminal Liability:

Criminal liability in cases of medical negligence is primarily governed by the provisions of the Indian Penal Code, 1860 (IPC). While the IPC does not explicitly define “medical negligence,” it provides a legal basis for holding healthcare professionals criminally liable for their actions or omissions. Notably, Section 304A of the IPC deals with cases involving the death of a person due to a rash or negligent act. This provision is frequently invoked in cases of medical negligence leading to a patient’s demise and can result in imprisonment for up to two years. Additionally, other general provisions of the IPC, such as Section 337 (causing hurt) and Section 338 (causing grievous hurt), are also utilized in the context of medical negligence cases. The distinction between civil and criminal liability hinges on the degree of negligence, with criminal liability typically requiring a higher threshold of recklessness or gross negligence.

Monetary Liability:

Monetary liability, often in the form of compensation, is another significant consequence of medical negligence. It arises from civil actions initiated by patients or their dependents seeking redress for injuries or harm caused by medical professionals. These actions are typically pursued before civil courts or consumer forums, where claimants must establish that the medical professional breached their duty of care, resulting in harm or injury to the patient. Permanent lok adalats, established under the Legal Services Authority Act, 1987, can also adjudicate on cases related to medical negligence involving “public utility services.” These lok adalats attempt conciliation before making determinations on the merits of the matter. Monetary compensation can be substantial, and the quantum of damages is assessed based on factors such as the severity of harm, medical expenses, loss of income, and other relevant considerations.

Disciplinary Action:

Disciplinary action against medical practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, formulated under the IMC Act, 1956. The IMC and State Medical Councils have the authority to take disciplinary measures against healthcare professionals for professional misconduct. Such misconduct can encompass a range of actions, including medical negligence. Disciplinary actions may include suspension or the permanent removal of a medical practitioner’s name from the medical register, thereby barring them from practicing medicine. It’s important to note that professional misconduct is a broader concept that may encompass medical negligence, and the specifics of each case determine the disciplinary measures taken. The consequences of medical negligence in India are both multifaceted and far-reaching. They serve the dual purpose of holding healthcare professionals accountable for their actions while providing recourse to patients who have suffered harm or injury due to substandard care. By encompassing criminal, civil, and disciplinary dimensions, the legal framework strives to maintain a delicate balance between ensuring the quality of healthcare and protecting the rights of patients. Consequently, healthcare providers in India operate within a legal landscape that demands a high standard of care, while also recognizing the inherent complexities and uncertainties of medical practice.

Basic Features of Medical Negligence and Standard of Care:

To comprehend the nuances of medical negligence in India, it is crucial to delve into its fundamental features and the yardstick applied to assess the standard of care expected from healthcare professionals. Medical negligence encompasses breaches of duty or wrongful acts by medical practitioners during the provision of medical care to patients. Here, we explore the key elements of medical negligence and the standards of care that guide legal determinations:

Duty of Care:

A paramount element of medical negligence is the duty of care owed by healthcare professionals to their patients. The duty to decide whether to undertake a case or not. It is the duty of a medical officer to determine the appropriate course of treatment with Care and Competence. The duty not to undertake procedures beyond one’s capabilities. Healthcare providers are expected to exercise a reasonable degree of skill, knowledge, and care when discharging these duties.

Breach of Duty:

Negligence, in the context of medical practice, is essentially a breach of the duty of care. It occurs when a healthcare professional fails to meet the standard of care expected of a reasonably skilled and prudent practitioner. The breach of duty can manifest in various forms, including errors in diagnosis, treatment, surgical procedures, prescription of medication, and the failure to obtain informed consent. Notably, errors of judgment alone do not necessarily imply negligence. Gross errors, however, may lead to findings of negligence.

Causation:

A critical aspect of medical negligence is establishing a causal link between the breach of duty and the resultant harm or injury suffered by the patient. The law requires that the breach of duty must be the direct or proximate cause of the harm. In other words, there must be a clear connection between the negligent act or omission and the adverse outcome.

Standard of Care:

The standard of care expected from healthcare professionals is a pivotal aspect of medical negligence cases. It sets the benchmark against which their actions are evaluated. In India, the standard of care is often assessed using the “Bolam test,” which requires healthcare professionals to adhere to the standard of the ordinary skilled person in their field, rather than the highest level of expertise. This test recognizes that the medical field is characterized by varying approaches and opinions, and it evaluates whether the practitioner’s actions align with those of a reasonably skilled peer in similar circumstances.

Errors of Judgment:

It is important to distinguish between errors of judgment and gross negligence. Errors of judgment, arising from complex medical decisions, do not necessarily equate to negligence. Gross mistakes, however, such as administering the wrong drug, operating on the wrong patient, or leaving surgical instruments inside a patient, may constitute gross negligence and warrant legal action.

Shifting Burden of Proof:

In medical negligence cases, the burden of proof initially rests with the party alleging negligence. The claimant must demonstrate a prima facie case of negligence. Once this threshold is met, the burden shifts to the healthcare provider to establish that there was no lack of care or diligence in their actions.

Evolving Standards:

Standards of care are not static and may evolve over time with advances in medical knowledge and technology. The standard of care applied is often influenced by the prevailing medical practices and opinions at the time of the incident. The assessment of medical negligence cases in India is a meticulous process that takes into account the complexities of medical practice and the need to balance accountability with the autonomy of healthcare professionals. While healthcare providers are held to high standards, the law recognizes the inherent uncertainties and variations in medical science, ensuring that judgments are fair and grounded in reasonable expectations of care.

Cases related to Medical Negligence

  • Indian Medical Association v. V.P. Shantha (1996):

This case introduced the concept of ‘informed consent,’ which mandates that patients must be provided with comprehensive information about the potential risks associated with a medical procedure before granting consent. The Supreme Court ruled that a failure to secure informed consent from a patient could constitute an act of medical negligence.

  • Martin F. D’Souza v. Mohd. Ishfaq (2009):

In this case, the Supreme Court delineated the expected standard of care for healthcare professionals. The court emphasized that a medical practitioner must possess the knowledge and skills that are reasonably anticipated from a competent professional in their respective field.

  • Samira Kohli v. Dr. Prabha Manchanda (2008):

Addressing the issue of vicarious liability in instances of medical negligence, this case established that a hospital can be held accountable for the negligence of its staff, even if the hospital itself was not directly responsible for the wrongdoing.

  • Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009):

This case revolved around the significance of expert opinions in medical negligence lawsuits. The Supreme Court clarified that expert opinions can serve as evidence in such cases, but they should not be the sole basis for determining whether negligence occurred.

  • Kusum Sharma v. Batra Hospital & Medical Research Centre (2010):

In this case, the Supreme Court affirmed that patients have the right to seek compensation for medical negligence, even in the absence of physical injuries. The court emphasized that mental distress and trauma resulting from medical negligence can also be grounds for compensation.

Advisory to Doctors and Safeguards in Criminal Prosecution by Supreme Court

Recognizing the increasing frequency of criminal prosecutions against doctors, which can be both distressing and disruptive to their professional lives, the Supreme Court of India has laid down certain advisory guidelines to protect medical practitioners from frivolous and unjust prosecutions. These guidelines, until statutory rules or government instructions in consultation with the Medical Council of India (MCI) are issued, provide essential safeguards to doctors facing criminal charges related to medical negligence. Here, we delve into these important safeguards:

Prima Facie Evidence Requirement:

Private complaints alleging medical negligence may not be entertained by the legal system unless the complainant provides prima facie evidence in the court. This evidence should take the form of a credible opinion from another competent doctor.

Independent Medical Opinion:

In cases involving medical negligence allegations, the investigating officer is required to obtain an independent and competent medical opinion. This opinion should ideally be provided by a doctor in government service who is qualified in the relevant medical field. This requirement aims to ensure an impartial and unbiased evaluation of the case, applying the Bolam test to the collected facts during the investigation.

Restriction on Routine Arrests:

Routine arrests of doctors should be avoided unless they are deemed necessary for furthering the investigation or for collecting evidence. Arrests should not be made solely on the assumption that the doctor may attempt to evade legal proceedings. These safeguards are aimed at protecting doctors from the undue burden of criminal prosecutions, particularly when the allegations lack credible evidence or are driven by frivolous motives. By setting these guidelines, the legal system seeks to strike a balance between accountability and the prevention of harassment of medical professionals.

Conclusion:

In conclusion, the realm of medical negligence laws in India is a multifaceted landscape that balances the rights of patients with the professional judgments of healthcare practitioners. This intricate equilibrium is vital to uphold the highest standards of patient care while acknowledging the inherent complexities and uncertainties present in the practice of medicine. The consequences of legally cognizable medical negligence can range from criminal liability and monetary compensation to disciplinary action. The legal system in India has laid out mechanisms to address these consequences while respecting the autonomy of medical professionals and the challenges they face. The concept of medical negligence is underpinned by the duty of healthcare practitioners to exercise care, diligence, and a reasonable degree of skill while making clinical judgments. Errors of judgment, which are not uncommon in the medical field, do not necessarily amount to negligence unless they are gross or reckless. Informed consent is another crucial facet of medical negligence laws, emphasizing patients’ rights and autonomy in making decisions about their treatment. While professional judgments are respected, healthcare providers are required to obtain valid informed consent based on adequate information. The legal system relies on expert opinions from qualified medical professionals to navigate the complexities of medical negligence cases. Courts do not substitute their judgment for that of medical experts but may intervene if medical actions are deemed highly unreasonable. Moreover, safeguards have been put in place to protect doctors from frivolous criminal prosecutions. These safeguards require prima facie evidence, independent medical opinions, and restrict routine arrests in cases of medical negligence allegations. Medical negligence laws in India continue to evolve, and there is a growing recognition of the need to strike a balance between safeguarding patient rights and respecting the autonomy of medical professionals. As the field of medicine advances and new challenges emerge, the legal framework surrounding medical negligence will adapt to ensure that both patients and healthcare providers are treated fairly and justly within the healthcare system.

References:

https://www.lexology.com/library/detail.aspx?g=b271f61b-9bc7-4d12-9e88-4c058fd8951b

https://ssrana.in/articles/medical-negligence-india/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354282

https://www.ijlmh.com/medical-negligence-in-india-a-critical-study/

https://asiindia.org/medical-negligence-the-judicial-approach-by-indian-courts/

https://lawrato.com/indian-kanoon/medical-negligence-law/medical-negligence-in-india-laws-and-procedures-2833

https://www.latestlaws.com/articles/all-about-law-on-medical-negligence-in-india-by-gargi

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Article Written By: Jangam Shashidhar.

 

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THE NEW SUBSTANTIAL LAW REPEALING,INDIAN PENAL CODE 1860

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 ABSTRACT –

The enhanced new law brought by the present ruling government replacing the substantive and procedural laws that have been over decades in our country. There have been significant changes to the law of the land. claiming that rather than Indian citizens, the Indian Penal Code of 1806 was designed to protect the interests of the British government.. The present paper respects both the existing Bharatiya Nyaya Sanhita Bill that was put forth in the Lok Sabha on August 1 and the long-standing law. Does proposing a new law change society by instilling fear? Does enacting or upholding the proposed law bring about change? It is safe to say that the Indian penal code of the colonial era was not lenient towards crimes committed by citizens, but the government officials  lacked  in the enforcement of the thoroughly codified law. The main goal of the bill is to give women and children top priority because they are the targets of the most heinous crimes and are the ones whose bodies are tortured.

INTRODUCTION –

The Bharatiya Nyaya Sanhita Bill, which will replace the IPC, will have 356 sections rather than the previous 511, with 175 sections amended, 8 new sections added, and 22 sections repealed. Union Home Minister Amit Shah presented the current bill on Friday, August 11.The home minster has stated that “ the colonial- era laws were meant to protect that state and its subjects, while the proposed changes are meant for deterrence and ensuring justice to the victim. Justice delivery will be central to new legal architecture” The bill’s 356 amendments state that murder shall take prominence over crimes against the state, crimes against women, and crimes against children. Additionally, the new for the first time covers the scope of offences related to organised terrorism. The Sanhita aims to eliminate antiquated and redundant provisions, add new offences, and strengthen the penalties for some crimes. The Sanhita also makes an effort to simplify and clarify the language used in the law. The substantial questions of law that arises now is whether the 8 new sections that have been added in the bill brings us to the objective of the paper. i.e.  Whether any new offenses are created which don’t exist now?

FEATURES OF THE BILL

  1. Maximum death penalty for offences like gang rape and mob lynching
  2. provisions that one of the penalties for minor offences is to perform community service for the first time.
  3. Provision for in-absentia trials of fugitives from justice  
  4. Additionally, the bill adds new offences like endangering India’s sovereignty, unity, or integrity, or engaging in acts of secession or armed rebellion.

CHANGES MADE

Sedititon- The codified law deals with sedition under section 124A which states.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 13 the Government established by law in 14[India], 15 shall be punished with 16[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.[2]

This offense as been prescribed the punishment of 3 years plus the added fine. In comparison with the BNS bill the term has “sedition” has been removed and  the introduction of a new section that deals with “Acts endangering sovereignty, unity and integrity of India given under section 150 of the seventh chapter of bill “ of offences against the state” which states

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine[3]

  The primary distinction is that the Indian penal code governs these offences through various sections and punishments, making it much more convoluted whereas the BNS bill has a wider angle for convicting the offence.  the insignificant amount of punishment change. Nothing is different because both punishments include a life sentence.

Criminal conspiracy –

Indian penal code defines criminal conspiracy under section 120 stating an agreement between two or more persons to commit an illegal act or a legal act by illegal means. The section also prescribes the punishment for criminal conspiracy, which varies depending on the nature and severity of the offense that is the object of the conspiracy.

 The bill has made changes to the definition and punishment under the section 61-

When two or more persons agree to do, or cause to be done–– (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. (2) Whoever is a party to a criminal conspiracy,–– (a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence; (b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both

The punishment prescribed by the Indian penal code for the offence is  life imprisonment or either description for a term not exceeding six months, or with fine or with both.  No difference can be drawn ,but the BNS also introduces a new section, Section 120, which addresses intentionally causing bodily harm or great bodily harm when provoked. According to this section, anyone who intentionally causes harm or great harm to another person on their own grave or sudden provocation shall be punished with imprisonment for a term that may not exceed three years, a fine, or both.

 

CHEATING

Section 316 of the new Sanhita, which defines cheating more precisely and proportionately, replaces Section 420. According to the kind and degree of harm done to the victim, Section 316 also makes distinctions between various degrees of cheating.

The maximum sentence for cheating under Section 316 is seven years, which is identical to the maximum sentence under Section 420, but the minimum sentence is now six months instead of one year.

the removal of Section 420, which deals with deceit and coercing the delivery of property, is one of the significant changes. In India, this section has been extensively used and abused, frequently for pointless or frivolous reasons.

The major crimes of history has also been replaced with this new bill i.e. Rape and murder not denigrating that fact  the bill has given prominence to the offence  against women and children which is  governd by sections 63  to 97. Sexual offenses separately has been major importance  .

RAPE

The legal definition and sanction for rape have been modified in the proposed Sanhita, which seeks to replace the Indian Penal Code of 1860. However, it also kept some contentious elements of the previous legislation.

Rape is defined in Section 63 of the proposed Sanhita as acts of sexual activity carried out without the consent or will of the woman.According to the proposed Sanhita, rape is punishable by a minimum of 10 years in prison, with the possibility of a life sentence, as well as a fine. The penalty must be fair and reasonable in order to cover the victim’s medical costs and rehabilitation costs.

MURDER

Murderers are subject to the following penalties, as stated in IPC Section 302: “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.”

Section 302 of the proposed Sanhita defines the crime of “Snatching” in the proposed BNS, 2023. According to Section 302(1), “Theft is “snatching” if the offender suddenly, quickly, or forcibly seizes, secures, grabs, or takes away any moveable property from any person or his possession in order to commit theft.”

Murder is covered by Section 99 of the proposed Sanhita, which distinguishes between culpable homicide and murder.

Punishment for murder is laid down in Section 101, which has two sub- sections.

  • According to Section 101(1), “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.”
  • The proposed Section 101(2) According to Sanhita, “When a group of five or more persons acting in concert murders on the basis of race, caste or community, sex, place of birth, language, personal belief, or any other ground, each member of such a group shall be punished with death or with imprisonment for life or with imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.”
  • The term “murder by a group,” which includes lynching, is used in Section 101(2).

According to Section 307, a person who attempts to kill another person with the intent or knowledge to do so and in a way that would constitute murder if they succeeded faces up to ten years in prison and a fine. If the attempt results in harm to the victim, the offender will either receive a life sentence in prison or the previously mentioned punishment.

Section 307 of the proposed Sanhita outlines the definition of robbery as a crime and its associated punishment. The proposed Sanhita’s Section 107, which also outlines the punishment for the crime, includes a provision for attempted murder.

 The bill altered the long-standing law that dealt with heinous crimes. These are just a few of the numerous amendments that the bill in the Lok Sabha has suggested. We have established the requirement that the conviction rate be taken to be above 90% in accordance with this Bill. According to Amit Shah, it will be required in every situation where a law specifies a sentence of seven years or more in prison that a forensic team visit the crime scene.

CONCLUSION

 The law enforced and the bill to be enforced have certain objectives that will benefit society in every possible way The statements made by the home minister may not be the absolute perspective of the codified law. Since the Indian penal code 1908, has been sentencing the guilty which the given substantive and procedural laws. In the view of a generic opinion, it is not for the law to be changed or to be made more stringent or for the procedure to be speedy. The conventional structure of well-written law is unquestionably sufficient to run a nation. The question is whether the judiciary has ever adequately implemented the legislature after it has been drafted.  Where does the law prevail on the land?  In a nation like India, the intent behind a bill to prioritize crimes against women and children is very broad. Partly because of the incorrect interpretation of our nation’s traditions and customs. It is commendable that the current government has implemented notable modifications with this new legislation, but right now it must keep a promise to the citizens who are in need.

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[2] Casemine.com/judgement/in/575fd361607dba63d7e6e044

[3]https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyaya_Sanhita,_2023.pdf

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Karnataka High Court held Second Wife Can’t Maintain Complaint Against Husband And In-Laws U/S 498A IPC

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Title: Kantharaju And State of Karnataka

Decided on: 17 July 2023

Case No: CRIMINAL REVISION PETITION NO. 1372 OF 2019

CORAM : HON’BLE JUSTICE S RACHAIAH 

INTRODUCTION

In this case, the Karnataka High Court put forward that a complaint under Section 498-A (cruelty) of the Indian Penal Code, filed by the second wife against the husband and her in-laws is not maintainable.

FACTS OF THE CASE

The case involves a complaint filed by the complainant against the petitioner, who is her husband and she is his second spouse. Initially, their marriage was harmonious, and they had a male child. However, after the complainant faced health issues, including paralysis, the petitioner began to harass her mentally and subject her to cruelty. He used abusive language, evicted her from their matrimonial home, and forced her to live on her own by running a petty shop. The petitioner even threatened to harm her and burn down the shop if she continued running it. Unable to tolerate the petitioner’s cruel behaviour, the complainant lodged a complaint with the jurisdictional authorities. he trial court convicted the petitioner under S. 498A of IPC. Later on the case was filed by the petitioner in High Court.

COURT’S ANALYSIS AND DECISION

The court allowed the petition filed by one Kantharaju and set aside the conviction order passed by the trial court convicting him for section 498-A on the complaint filed by his second wife.

The bench said, “The prosecution has to establish that the marriage of PW.1 (complainant) is legal or she is the legally wedded wife of the petitioner. Unless, it is established that she is the legally wedded wife of the petitioner, the Courts below ought to have acted upon the evidence of PWs.1 and 2 that PW.1 was the second wife. Once PW.1 is considered as second wife of the petitioner, obviously, the complaint filed against the petitioner for the offence under Section 498-A of IPC ought not to have been entertained.”

The bench further elaborated that the provision 498-A said “Woman, under it means and includes, legally wedded wife. It is an admitted fact that the complainant was the second wife of the petitioner.”

Hence it was held by the court, the complaint filed by the second wife against the husband and her in-laws is not maintainable under the court of law.

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Counsel argues that POCSO Act accusations cannot be based solely on the contents of FIR – Dismissed by Haryana High Court

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TITLE: Surjeet Khanna v State of Haryana

Decided On-:14.07.2023

CRM-M-4079-2023

CORAM: Hon’ble Justice Mr. harnaresh Singh gill  

INTRODUCTION-   The petitioner requests the dismissal of an initial police report (FIR) filed under Section 306 of the Indian Penal Code and Sections 6, 18, and 21 of the later-added Protection of Children from Sexual Offences Act of 2022 (the “POCSO Act”) in the district of Faridabad.

FACTS OF THE CASE-

The one who is filing the petition is the principal of the Delhi Public School in Greater Faridabad’s Sector 81. The unfortunate incident that resulted in the suicide of a young student in Class X-B due to the alleged harassment, bullying, and torture by his classmates/students of the School prompted the filing of the aforementioned FIR. When informed of the aforementioned harassment, bullying, or mental torture, the petitioner, who was in charge of the school in its entirety, did not respond as required by the POCSO Act. The complainant is an unfortunate mother whose world was turned upside down by her son’s premature death. This Court regrets that this unfortunate act occurred and sympathizes with the parents of the child.

COURT ANALYSIS AND DECISION

The senior attorney representing the petitioner would fervently argue that there is no instigation on the petitioner’s part; that a simple reading of the FIR’s contents and the very role played by the petitioner in resolving the situation by involving the parents of all the children (involved in the alleged incident), including the mother of the deceased child (complainant), would even strengthen the petitioner’s firmware that no ingredients of Section 107 were present.

On the contrary , the knowledgeable State Counsel contends that in accordance with the POCSO Act, the Petitioner, who was the Principal of the School at the Time, who, by virtue of her inaction, caused the death of a young person, cannot be heard pleading her false accusation.

Both counsels have relied their submissions on previous rulings of various Hon’ble courts. The court after having a holistic view of the arguments made by both parties came to view of stating i.e.

“The learned Senior Counsel for the petitioner’s argument that the petitioner cannot be tried under Section 21 of the POCSO Act in the absence of the children who were allegedly involved in the incident of harassment and bullying cannot be accepted for the simple reason that this Court cannot discuss the reasons why the aforementioned students left the School or their potential expulsion from the School in the current proceedings under Section 482 Cr.P.C.  Nothing else has been emphasised. Given the foregoing, the present petition is hereby dismissed because it lacks merit.”

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Does a False pretext of marriage amount to rape -?

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ABSTRACT-

The present research indicates, a question frequently arised in court as to whether sexual intercourse with women constitutes rape if consent was obtained through a false promise of marriage under Section 375 of the Indian Penal Code, 1860. Rape was considered a crime in India, and offenders were punished. Because there is a sense of juvenile freedom in certain parts of the world, the word Marriage may have acquired a very negative aura around it. Marriage is viewed as a holy bond between two people that transcends all physical, emotional, and spiritual barriers. But at the same time on a different note, it is viewed negatively by young people in some societies. You are against it when you are young because your physical body is in a certain mode. Marriage appears to be a bond and a chain. Different religions and cultures treat marriage in a way their holy book prescribes it.  Although the determining factor varies from case to case, the Indian Judiciary has recognized marriage through deception as a crime of rape.

DOES IT AMOUNT TO RAPE – ?

The main difference is consensual sex and non -consensual sex. The broadness of consensual sex has to determined on one of many grounds, whether it falls within the ambit or not. i.e. false promise to matrimony. Consensual sex is defined as sexual activity between the parties that is permitted by both of them. When a man engages in sexual activity with a woman against her will and without her consent, it is called rape.

In the modern world, where couples and cohabitation are common, particularly in urban areas, and are also tolerated by society, also when the mind of the adult is twice grown as the age at present can be said sex is no longer seen as taboo. Consensual sexual liaisons between two men and women are now perceived as a liberating act rather than a sin in today’s evolving environment. As a result, a distinction between consenting sexual activity and rape has been made in some instances, especially where there is a high risk of abuse.

[1]In one instance (Saleha Khatoon v. State of Bihar, 1988), the prosecution procured consent for sexual activity in return for a fictitious promise of marriage. Following the filing of a complaint, a police investigation was conducted, and the police report, which was submitted in accordance with Section 173 of the Criminal Procedure Code, established a case of violation under Section 376 of the IPC.

However, the judge tried the defendant under Section 498 for detaining a married woman rather than Section 376 for rape, most likely because the prosecutor was already married

Obtaining consent through deception, deception, or unsuitable persuasion is another method of Rape. Consent is crucial when committing rape. Depending on whether or not consent has been given, sexual activity is either legal or illegal.

Consent may be given voluntarily or fraudulently, compelled or uninformed, implicit or explicit, informed or uninformed. A violation of Indian law is having a sexual relationship while being falsely promised marriage. Soliciting sexual consent under the guise of marriage does not exonerate a person from rape accusations. If a man makes a woman a false promise that he will marry her so they can have a sexual relationship even though he has no intention of doing so, and she accepts the promise, then the consent was obtained fraudulently.\

 SECTION 375 & 90 OF IPC DEFINE RAPE AND CONSENT

  1. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and[2]

Section 90 defines the situations in which the consent apparently to be given by a person is not sufficient for purposes of the Code. It was suggested that consent obtained from a person by putting him under hypnotic or other occult influence should be specifically mentioned in the section. [3]

JUDICIAL ANALYSIS –

In numerous cases, the Supreme Court of India has explained the distinction between a promise and a false promise and breaking it.

In the case of Naushad (State of Uttar Pradesh v. Naushad, 2013), the defendant had been seeing the prosecutor for the previous two years and had thought that he would marry her. On the basis of this assurance, the defendant Naushad vowed to wed the victim and frequently engaged in physical contact with her.She was raped, and as a result, she got pregnant.

The defendant was found guilty of betraying her trust by refusing to wed her and given a life sentence for raping her while pretending to be engaged in a fake marriage The defendant also allegedly obtained her consent in accordance with Section 90 of the IPC in the mistaken belief that he could wed her.

In the Sachin case (Sachin @ Devendra Gajanand Sangray v. State of Gujarat, 2015), the accused and the victim had been in a live-in relationship and cohabiting in Surat, Gujarat for a year. They were also coworkers. Due to a personal feud that started between them on March 1, 2012, they broke up after a year. On March 10, 2012, he visited the girl’s home to extend an invitation to his wedding on March 12, 2012. The girl’s complaint claims that the defendant  raped her after pretending to want to marry her.[4]

As stated earlier it depends from case to case in a recent judgement, Orissa high court has declared the SEXUAL INTERCOURSE ON THE FALSE PRETEXT OF MARRIAGE does not amount to rape

The court made the observations last month while granting bail to a man accused of raping a woman on the pretext of marriage.

“A consensual relationship without even any assurance, obviously will not attract the offence under section 376 (punishment for rape) of the Indian Penal Code. The law holding that false promise to marriage amounts to rape appears to be erroneous,”

[5]“It is an undeniable fact that our society is still largely conservative when it comes to matters of sex and sexuality. Virginity is a prized element. The victim being a major girl with a sound mind, there seems to be no question of anyone being in a position to induce her into a physical relationship under the assurance of marriage. There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy,” the judge said.[6]

CONCLUSION

“While a murderer destroys the physical frame of the victim, a rapist degrades and de les the soul of a helpless female.”(Tulsidas Kanolkar v. State of Goa, 2003)

Perhaps most significantly under Indian law, ending a marriage engagement after having sex does not automatically constitute rape. Due to the absence of probate legislation, rape by false promise of marriage cases are decided at the court’s discretion after taking all relevant factors into account.

There must be some use of force and a complete lack of consent in order to prove the first aspect of rape. First-degree rape is defined as coerced sexual contact with the victim’s consent. Furthermore, rape in the second degree, which carries a less severe punishment than rape in the first, may be defined as consent obtained through a mistake of fact, misrepresentation, or deception.

The best form to come to a decision in this area of cases is to follow the Latin maxim which is the very basis of law Audi alteram partem listen to the other side”, or “let the other side be heard as well[7]

Written by – Steffi Desousa

[1] file:///C:/Users/Steffi%20Desousa/Downloads/JPSP+-+2022+-+7.pdf

[2] https://indiankanoon.org/doc/623254/

[3]https://www.advocatekhoj.com/library/lawreports/indianpenalcode/26.php?Title=Indian%20Penal%20Code&STitle=Section%2090#:~:text=Section%2090%20defines%20the%20situations,specifically%20mentioned%20in%20the%20section.

[4] [4] file:///C:/Users/Steffi%20Desousa/Downloads/JPSP+-+2022+-+7.pdf

[5] https://www.hindustantimes.com/india-news/consensual-sex-on-pretext-of-marriage-not-rape-orissa-hc-101673290400807.html

[6] https://www.hindustantimes.com/india-news/consensual-sex-on-pretext-of-marriage-not-rape-orissa-hc-101673290400807.html

 

[7] https://en.wikipedia.org/wiki/Audi_alteram_partem

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