0

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

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.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”  

Written by- Shreya Sharma

Click here to read the judgement

0

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

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.”

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

Click here to view judgement

 

 

0

Does a False pretext of marriage amount to rape -?

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

0

The appellant prays in front of the court, seeking that the guilty sentence be reduced to time served under section 392 & 411 IPC- granted by Haryana High court

TITLE: Lovepreet v UT Chandigarh

Decided On-: May 24, 2023

CRA-S-47 of 2021 (O&M)

CORAM: Hon’ble Justice Mr. Jaishree Thakur

INTRODUCTION-   According to Section 392 of the IPC, the defendant has been found guilty and given a sentence of seven years of hard labour and a fine of Rs. 5,000/-; however, if the fine is not paid, the defendant will also be subjected to six months of rigorous imprisonment and a three-year sentence under Section 411 of the IPC.

FACTS OF THE CASE-

The complainant, Sanjeev Kumar, gave a recorded statement to the police stating that he was employed at Dhaba, Delhi Paranthe Wali Gali, Sector 22A, Chandigarh.

He was riding his motorbike with the registration number CH76(T)6691 home from work at around 2:00 a.m. He was riding his motorbike when a white colour car pulled up behind him and stopped in front of it in Chandigarh’s sector 22/23. He was asked to turn over anything he was holding when two boys exited the aforementioned car. While the other boy pulled out a gun-like object and struck him in the head, the first boy slapped him.

They violently took Rs. 10,000 from his pocket and a gold chain from his neck while threatening to kill him if he made any noise. The boys then escaped in the same vehicle with the HR-9671 registration number. The present FIR No. 398, dated December 26, 2017, was filed at Police Station 17 in Chandigarh based on the aforementioned statement and was filed under IPC Sections 397, 34, and 411 as well as Sections 25/54/59 of the Arms Act. charge-sheeted under Sections 25 and 27 of the Arms Act as well as Sections 397 and 392 of the IPC read with Sections 34 and 411. After listening to the parties’ knowledgeable solicitors and evaluating the evidence,

As per the petitioner’s conviction and punishment on the record,

COURT ANALYSIS AND DECISION

The appellant’s knowledgeable attorney has argued that while he does not wish to contest the merits of the appellant’s conviction, he would be content if the appellant’s sentence were to be viewed favorably. Given these facts, the sentence meted out to the appellant may be reduced to the one he has already served.On the other hand, learned State counsel argued against the arguments made by learned counsel for the appellant and added a custody certificate to the record, arguing that the sentence given to the appellant was proportionate to the crime he committed. The appellant is not deserving of any indulgence.The conviction of the appellant is upheld in light of the distinctive facts and circumstances of the current case as noted above, in addition to the preceding arguments.

The sentence will be reduced to reflect the time the appellant has already served, though. The same would, however, be contingent on the petitioner depositing costs in the amount of Rs. 10,000 with the Punjab and Haryana High Court Lawyers’ Welfare Fund within a month of today. It is made clear that the appeal will be deemed to have been dismissed if the aforementioned sum of Rs. 10,000 is not deposited within the allotted time.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by–  Steffi Desousa

Click here to view judgement

0

Delhi High Court Dismissed the petition filed for Quashing of FIR under IPC & POCSO act

Title: MOHD. AMAAN MALIK vs THE STATE GOVT NCT OF DELHI & ANR.

Reserved on:29.05.2023

Pronounced on:05.07.2023

+ CRL.M.C. 7121/2022 & CRL.M.A. 8829/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA

Introduction

The Delhi High Court Dismissed a petition for the quashing of FIR No. 162/2021, has been filed on behalf of the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (the “Cr.P.C.”) for acts punishable by Sections 363/366A/376/505 of the Indian Penal Code, 1860 (the “IPC”) and Section 6 of the Protection of Children from Sexual acts Act, 2012 (the “POCSO Act”).

Facts of the case

The present FIR was filed on 29.05.21 based out-off the statement of victim. Victim and her mother had shifted to wazirabad from daryaganj two months prior to the incident. She met the accused Mohd. Amaan Malik, a native of Daryaganj in Delhi, who was around 20 years old, while she was attending classes there while she lived there. They had become pals at the tutoring centre and had begun using mobile phones to communicate. The defendant had phoned her at Sabzi Mandi and driven her in his automobile to a guest home in Sarai Kale Khan. After that, he had provided her drink and engaged in sexual activity with her without her permission. The victim also claimed that the accused had started using her as leverage by threatening to post her inappropriate photos on social media. As a result, the victim claimed that the accused had repeatedly taken her to Sarai Kale Khan’s guest house where he had forcibly engaged in sexual activity with her.

She discovered she was pregnant on April 7, 2021, and told her mother about it. Her mother then phoned the accused and informed them of the pregnancy. Amaan, the suspect, then went to the victim’s home and threatened both the girl and her mother. At Turkman Gate on April 9, 2021, he married the victim by intimidating her mother. He then took the victim and her mother to sign the marriage licence. He then began sharing a rental home with the victim in Wazirabad, close to her mother’s home.

Accused threatened the woman, beat and molested her, and put pressure on her to get an abortion. She had requested that the accused take her to her marital house, and he had responded that he had merely conducted the marriage to get rid of her. The victim underwent a medical examination at LHMC Hospital as part of the inquiry, and a positive pregnancy test result was obtained. She had verified her statement, which was recorded under Section 164 of the Criminal Procedure Code. Her pregnancy was ended at LHMC Hospital and the foetus was saved after additional research. The suspect was detained on May 29, 2021. Blood samples from the victim, the victim’s foetus, and the accused were collected, and sent for DNA examination. The accused/petitioner was identified as the foetus’ biological father by DNA testing. It was discovered over the course of the inquiry that the victim was married. Her date of birth, which was discovered in her school records to be 12.05.2004, meant that she was 17 years old when she legally wed the accused.

Analysis of the court

Before arriving at the conclusion, the Delhi High court referred to the principles laid down in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.1992 SCC (Cri) 426 by the apex court, which is to be considered while quashing a FIRs and it also analysed the verdict of the apex court in the case of Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine 315, and culled out the relevant principles that govern the law on quashing of FIRs under Section 482 of the Cr.P.C.

Based on the facts of the case the high court was of the opinion that on prima facie terms this was a case of sexual assault which had taken place in 2021 and due to societal stigma and pressure the victim was forced to marry the accused which got established from the date mentioned in Nikahnama, It was undisputed that the victim was a minor throughout this entire time. The Nikahnama dated 09.04.2021 further demonstrates that, considerably later than the alleged sexual assault of the victim, the victim was still a juvenile and had not yet reached the age of majority.

The Court also mentioned the controversy around the age of marriage in muslim personal law and applicability of POCSO act, it cited several judgements from various high courts as, In Aleem Pasha v. State of Karnataka 2022 SCC OnLine Kar 1588, the Hon. Karnataka High Court noted that Muslim personal law will be superseded by the POCSO Act, a unique piece of legislation designed to protect minors from sexual assaults. Earlier, in Rahul v. State of Karnataka 2021 SCC OnLine Kar 12728, the Hon’ble Karnataka High Court made a similar observation. The Hon’ble Kerala High Court recently ruled in Khaledur Rahman v. State of Kerala & Anr. 2022 SCC OnLine Ker 5833 that marriages between Muslims under personal law are not excluded from the POCSO Act’s purview and that if one of the parties to the marriage is a minor, offences under the Act still apply regardless of whether the marriage is valid or not. The Court, while referring to Section 42-A of the POCSO Act observed that the POCSO Act will prevail over personal laws and customary laws.

While on the other hand the delhi high court also took of  the Hon’ble Punjab and Haryana High Court held in the case of Gulam Deen v. State of Punjab 2022 SCC OnLine P&H 1485 that a Muslim girl beyond the age of 15 is competent to engage into marriage and that Muslim personal law governs a Muslim girl’s marriage. The National Commission for the Protection of Child Rights (NCPCR) filed Special Leave Petition (Criminal) No. 26834/2022 in opposition to the aforementioned ruling, and the Hon’ble Apex Court decided to consider the issue of whether a young Muslim girl can marry after reaching puberty. The Hon. Punjab and Haryana High Court in Javed v. State of Haryana, CRWP-7426-2022(O&M), it was determined that Muslim women who were 15 years old or older might wed someone of any race. In accordance with Section 12 of the 2006 Prohibition of Child Marriage Act, such a marriage would not be invalid due to the girl’s free will and agreement. However, the Hon’ble Apex Court ruled on 13.01.2023 in Special Leave Petition (Criminal) No. 35376/2022 submitted by NCPCR that the ruling in the matter of Javed (above) should not be used as precedent in any subsequent cases. In a nutshell, as of now, the question of whether a female who reaches puberty and the age of majority after turning 15 is still considered a minor would be governed by the provisions of the POCSO Act/Child Marriage Restraint Act or not, is pending for consideration and adjudication before the hon’ble Apex Court. As a result, there are inconsistent rulings over whether the POCSO Act and the Child Marriage Restraint Act, or the personal law, will apply to a juvenile who is married under Muslim law. In any event, the claims of rape in this case are made before the couples’ marriage rather than after it, thus the court will not discuss the legitimacy of the marriage between the present petitioner and the victim.

In any case, in the current case, the minor victim expressly denies that any sexual relationships were established with her consent and describes the specifics of her initial sexual assault and subsequent sexual assaults under the threat of having her inappropriate photos made public. In these circumstances, the present case is not covered by the cases of Bhajan Lal (previous) or Neeharika Infrastructure (previous), and this Court cannot conclude from the merits of the case that the allegations against the petitioner are baseless or improbable or that the alleged offence could not have occurred.

However, this circumstance is frightening and serves as a harsh warning reminder. Occasionally, after a sexual attack, a troubling trend develops in which the accused marries the victim, In an apparent attempt to avoid being charged with a crime, they immediately desert the victim if the FIR is dismissed or bail is obtained.

This Court is not disposed to utilise its inherent authority under Section 482 Cr.P.C. for the purpose of quashing the disputed FIR in light of the overall facts and circumstances of the case. However, given that the charge arguments have not yet been heard, the issues brought before this Court can be raised before the competent Trial Court, where they will be resolved in accordance with the law. As a result, both the current petition and the awaiting application are dismissed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to view the judgement

1 9 10 11 12 13