#rape Archives - Prime Legal

8 Mar

No false promise of marriage; Prosecutrix mature enough to foresee her actions: Supreme Court quashes the FIR alleging Rape

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Blog # Supreme Court, #False promise, #FIR, #Marriage, #rape, #Subsistence of marriage

Case title – XXXX vs State of Madhya Pradesh & Anr

Case no. – Criminal Appeal No. 3431 OF 2023

Decided on – March 06, 2024

Quoram – Justice C.T. Ravikumar and Justice Rajesh Bindal

Facts of the case

The respondent 2/complainant, a married women had filed an FIR under Sections 376(2)(n) and 506 IPC alleging that her tenant (appellant) maintained physical relationship with her on a promise to marry her.

The appellant in the present case filed an appeal under Section 482 Cr.P.C. for quashing the FIR against him. The High Court dismissed the petition filed by him. Subsequently, he filed an appeal before the Apex Court.

Court’s observation and analysis

Firstly, the Court noted the discrepancy in the FIR filed by the complainant and the statement recorded by her under Section 164 Cr.P.C.

In the FIR, the respondent/complainant stated that she managed her own cloth shop. As there was a dispute with her husband, she was living separately. She has a daughter aged 15 years. On 10.12.2018, she got divorce from her husband. In 2017, Sadbhav Company had taken first floor of their house on rent in which the appellant, who was working with the company, stayed. During spare time, the appellant used to meet her in the shop.

Gradually, the relations developed. The appellant proposed that in case she takes divorce, he will marry her. The complainant stated that after the divorce, on 10.01.2019, at about 11.00 PM, the appellant came to her room and had physical relations on false promise of marriage. When she insisted for marriage, he refused by saying that his family didn’t agree. Thereafter, the FIR was got recorded on 11.12.2020.

There was complete change in the stand of the complainant in her statement recorded under Section 164 Cr.P.C. The fact remains that the parties admittedly were in relations from 2017 onwards. Some alleged promise to marry came in January 2019, from where they started having physical relations. It has also come on record that it is not only the consent of the complainant which is clearly evident but also of the parents and daughter of the complainant as they were living in the same house, where allegedly the appellant and the complainant were having physical relations.

Secondly, the court observed that, in the FIR the complainant stated that she got divorce from her earlier husband on 10.12.2018. But, in the statement under Section 164 Cr.P.C., she stated that marriage between the appellant and the complainant was solemnized in a temple in January 2019. However, in actuality, the complainant obtained divorce from her husband in 2021, which reveals that the complainant re-married the appellant during subsistence of her earlier marriage.

Thirdly, on the basis of the FIR and the statement recorded, the Court inferred there was no promise to marry initially when the relationship started in the year 2017. Even on the dates when the complainant alleges that the parties had physical relations, she was already married to the appellant. The Court relied on the precedence in Naim Ahamed v. State (NCT of Delhi) and ruled that the appellant was not guilty in the instant case.

Judgement

The complainant had a child who was 15 years old and was 10 years older than the tenant. The Court pointed out that the complainant was a mature individual who could foresee her actions and take right decision.

The Court stated that she was matured and intelligent enough to understand the consequences of the moral and immoral acts for which she consented during subsistence of her earlier marriage. Therefore, the Court held that the initiation of rape proceedings against the appellant was an abuse of process of law and quashed the FIR against the appellant.

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Judgement Reviewed by – Keerthi K

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3 Mar

Navigating the legal issue: Sexual Violence in Conflict Areas

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Articles #Legal issue, #rape, #Sexual Violence, #UN report

Our duty is not just to stand in solidarity with the survivors, but to actively work towards eradicating sexual violence in conflict and creating a future free from fear – Phumzile Mlambo-Ngcuka.

INTRODUCTION –

The world has seen various conflicts over numerous reasons throughout its history and further various tactics and actions have been undertaken to destroy the opposite nation with arguably, sexual violence in such areas being the worst.

Sexual Violence has been defined as “Sexual violence is any sexual act, attempt to obtain a sexual act, or other act directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting. It includes rape, defined as the physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object” by the World Health Organization.

Further, conflict related sexual violence is defined as “refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict” by the United Nations.

As reflected by the quote, the article will try to analyze the way forward in relation to sexual conflict in conflict areas herein referred to as Conflict related sexual violence.

BRIEF HISTORY AND PRESENT SCENARIO OF CONFLICT RELATED SEXUAL VIOLENCE –

It has been noted that the act of rape was criminalized by few army codes as early as 14^th century noting the affect it would have had on the civilians as well as the discipline of the army.

The Lieder Code drafted during the American Revolution in February of 1863 has been considered as the earliest known legal code which tried to establish the law dealing with armed conflict which mentions and states that sexual assault was a punishable offence.

World War 2 was another armed conflict where sexual violence was silent evil which prevailed as a silent crime. after the end of the war saw one of the most criticized judgments regarding to sexual violence, produced by the judges who were a part of the Nuremberg Trials, they had stated that the laws of the war which explicitly criminalized sexual violence in conflict areas was only applicable to the enemy nations and not the allied forces^[1]. This was further in relation to the highly debated Sexual violence allegations which was leveled against the soviet Army which was part of the Allied forces.

On the backdrop of the World War 2, the Geneva Conventions,1949 was passed which explicitly criminalized wartime Rape through Article 27. Further, this period saw many nations around the world gain their independence and further, enact their own laws criminalizing Sexual Violence altogether. But Conflict related sexual violence is still very much prevalent in the modern days with many allegations being leveled against various countries and their armies in the 21^st century. few of the recent armed conflicts where there was an alleged large scale sexual violence are Tigray War, Myanmar Civil War, Russian Invasion of Ukraine etc.

It must be noted that even with various international conventions which have been ratified by various countries across the globe, Conflict related sexual violence is still as prevalent as it was in the 20^th century with many being recorded for namesake without holding anyone responsible for the same.

THE UNITED NATIONS REPORT ON CONFLICT BASED SEXUAL VIOLENCE

The United Nations report on conflict-related sexual violence covering 2022 underscores the urgent need to address this horrific issue. It has persisted despite international efforts to eradicate it, and the report highlights the dreadful situation that continues to spread out in various conflict-ridden regions around the world. Survivors of conflict-related sexual violence constitute a diverse and multifaceted group. The report documents cases involving women, girls, men, boys, and individuals of diverse sexual orientations, gender identities, and those affected by disabilities. Their ages range from the very young to the elderly, with the majority coming from socioeconomically marginalized communities.

It is important to note that the report further uncovers the often-overlooked reality that men, boys, and gender non-conforming individuals are also strongly impacted by conflict-related sexual violence. Despite progress, it is crucial to confront the ongoing challenges faced by survivors and the children born of conflict-related rape. Stigma, insecurity, and socioeconomic isolation persist, casting long shadows over the lives of those affected.

As the civic space decreased and the rule of law weakened in 2022, both state and non-state armed groups saw the opportunity to exploit the vulnerabilities of affected populations. Groups used sexual violence, including rape, gang rape, and abductions, as real weapons, and instruments, causing immeasurable suffering to individuals and communities. Internationally recognized terrorist organizations and transnational criminal networks have employed sexual violence as a tactical weapon to destabilize already fragile regions.

This action and tactic of committing sexual violence has hindered all sorts of morality as well as any attempt made for a peaceful resolution of the issue. In several instances, sexual violence has been used as an instrument of intimidation. In some cases, the authorities responded to civilian demonstrations and protests with disproportionate force, including the use of sexual violence as a means of repression. This abuse of power creates a climate of fear that completely suppresses dissent and undermines basic human rights.

The involvement of multiple countries and their armies has made it difficult to hold perpetrators accountable. All too often, attribution for these dreadful crimes has been hindered because of the presence of multiple and varied actors, including state forces, private military and security companies, and militias operating alongside national armed forces. This lack of accountability perpetuates an extremely dangerous cycle of impunity, emboldening those who commit sexual violence to continue their actions without any fear of consequences.

In order to address all these issues, it is pertinent to make sure that every claim of sexual violence is thoroughly investigated by a third independent body whose reports and findings are bindings as well as further acting as a solid proof in order to meet the ends of justice.

CONCLUSION

Conflict related sexual violence is still a huge issue which has to be addressed with due care and regards. It has often so happened that various instances of such conflict related sexual violence have just been forgotten or addressed poorly with the victims finding absolutely no justice. Further, the crippled international laws and organisations are bound by their limitations due to which they do not address such issues and cases until and unless they are in the interests of the countries which are considered to be the first world countries.

Therefore, there is an urgent need to address the issue of sexual violence in conflict areas with humanity and justice at the core rather than beneficial interests of the countries and for this to happen, there is a need for the international organisations to take up such issues more seriously and make sure that the nation at fault is punished according to the conventions laid down because at the end of the day, everyone is a human regardless of which country they belong to.

Article Written By – Namratha Sharma

5 Feb

Maintaining a sexual relationship with consent from the inception is not an offence: Supreme Court

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blog, Blog #consent, #law, #Marriage, #rape, #SupremeCourt

Case title: Sheikh Arif vs State of Maharashtra & Ors.

Case no.: Criminal appeal no. 1368 of 2013

Decided on: 30.01.2024

Quorum: Hon’ble Justice Abhay S. Oka, Hon’ble Justice Pankaj Mithal

FACTS OF THE CASE:

The current appeal is in the case of rape based on a false promise of marriage. The second respondent filed a complaint against the appellant at the Sadar Police Station in Nagpur. According to the complaint, the appellant and the second respondent first met in 2011. They became acquainted with each other and entered into a relationship. The second respondent alleges that the appellant attempted to maintain a physical relationship with her but she prevented him from doing so. However, by making a false promise of marriage, the appellant engaged in sexual intercourse with her on multiple occasions.

During sexual intercourse, she became pregnant and had an abortion. She then engaged with the appellant. For the second time, she became pregnant. The second respondent then saw photos of the appellant’s engagement ceremony with another woman on his cell phone. The second respondent stated that she was informed the day before the complaint was filed that the appellant had married another girl. The appellant claims that there was a Nikah between him and the second respondent at Dargah. The appellant’s case is that he was unable to produce the original Nikahnama, but the police seized a copy of it.

ISSUES:

Whether or not the appellant maintained a relationship based on a false promise of marriage?

LEGAL PROVISION:

According to Section 375 of the IPC, if the victim of the alleged rape is over the age of 18, having a sexual relationship with her consent is not a crime.

APPELLANTS CONTENTION:

The appellant’s learned counsel argued that their long-standing relationship with the second respondent was always consensual. He stated that the appellant married the second respondent on January 20, 2017. He argued that the appellant’s prosecution constitutes an abuse of legal process.

RESPONDENTS CONTENTION:

The State’s counter-claim stated that the report of a handwriting expert was requested in order to determine the genuineness of the signatures on the Nikahnama. The learned counsel for the second respondent contended that, even if it is assumed that the second respondent consented to the continuation of a physical relationship, this consent was tainted by fraud and misconception. She contended that, despite the Investigating Officer’s repeated requests for the appellant to produce the original Nikahnama, he failed to do so, and thus an adverse inference must be drawn against him. She urged that, in any case, the issues raised could only be addressed during the trial.

COURT ANALYSIS AND JUDGEMENT:

The court cited the case of Anurag Soni, which held that if the victim’s consent is based on a misconception, it is irrelevant because it is not voluntary consent. If it is established that the victim’s consent was obtained as a result of a false promise to marry, there will be no consent, and the offence of rape will be proven.

The court noted that the second respondent was admittedly older than 18 when the relationship began. It also stated that at the time the complaint was filed, the second respondent was 24 years old.

Despite the fact that the second respondent claimed it was a forced relationship, she did not file any complaints until the complaint date. According to the second respondent, the appellant and the second respondent held an engagement ceremony in July 2017. As a result, on the facts of the case, it is impossible to accept that the second respondent maintained a physical relationship with her from 2013 to 2017 based on a false promise to marry.

Now, when it comes to the Nikahnama, it is true that the original could not be produced. However, the seizure panchnama indicates that a carbon copy of the Nikahnama was taken. The police officers present at Nikah recorded the statement of one Burhanuddin. He confirmed the fact that the appellant and the second respondent performed Nikah together.

The doctor who treated the appellant and second respondent claimed that the second respondent informed her that the appellant was her husband.

Finally, the court found that the appellant’s physical relationship with the second respondent was consensual. In fact, she attended the engagement ceremony without protest. However, she denies that she married the appellant. Taking the prosecution’s case as true, it is impossible to accept that the second respondent maintained a physical relationship solely because the appellant made a promise of marriage.

As a result, the impugned judgement and order, as well as the charge sheet filed on the basis of the same, are quashed and set aside, and all future proceedings in the case are quashed.

Written by – Surya Venkata Sujith

Click here to read the judgement

23 Jan

Supreme Court Quashes Rape Charges, Emphasizing Accused and Complainant’s Relationship Following Forced Marriage.

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Blog #divorce, #Marriage, #rape, #SupremeCourt, #Talaq-E-Khula

Case Title: Mohd. Julfukar v. The State of Uttarakhand and Another

Case No: Criminal Appeal No. 174 of 2024

Decided on: 9th January, 2024

CORAM: THE HON’BLE MR. JUSTICE B.R. GAVAI AND HON’BLE MR. JUSTICE SANDEEP MEHTA

Facts of the Case

The accused/appellant engaged in a relationship with the complainant against her parents’ wishes, and they chose to live together. The complainant’s father filed a Habeas Corpus Petition in the High Court, alleging that the accused had unlawfully detained his daughter and seeking a directive for her production. Subsequently, the accused and the complainant cohabited for a significant period. However, their relationship encountered discord, leading them to reside separately. Following this, the complainant lodged an FIR with the Police Station, accusing the accused of offenses under Sections 376, 377, and 506 of the Indian Penal Code.

Issue

Whether the sexual relationship between the accused and the complainant after the ‘forced’ marriage amounted to Rape?

Legal Provision

Section 375 of the Indian Penal Code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.”

Court’s analysis and decision

The Supreme Court nullified a rape case upon recognizing that the sexual involvement between the defendant and the complainant occurred subsequent to a marriage that was deemed coercive. The Court made this observation during an appeal contesting the decision of the Uttarakhand High Court, which had denied the accused’s application to dismiss the charges under Sections 376 and 506 of the Indian Penal Code.

The Bench, consisting of Justice B.R. Gavai and Justice Sandeep Mehta, stated, “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. 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.”

The Court additionally stated that the complainant herself has expressed a lack of intention to pursue the legal proceedings any further. In her affidavit submitted to the Court, she conveyed that they have jointly sought a divorce, which was officially concluded through Talaq-E-Khula on September 7, 2022.

The Court further mentioned that the appellant and the complainant have amicably settled their differences and mutually opted to lead peaceful lives. Consequently, the Court deemed the ongoing criminal proceedings contrary to the interests of justice. In line with this, the Supreme Court granted the appeal, resulting in the annulment of the High Court’s order.

Written by- Afshan Ahmad

Click here to read the judgement

14 Jan

Rape, Murder and Remission: Supreme Court on Bilkis Bano Case

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blog #Bilkisbano, #crime, #legalnews, #lsupremecourt, #rape

“A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty?”

Introduction

The Supreme Court of India passed a judgement in the infamous case of Bilkis Bano favouring the victim and her late family. The judgement is considerably known as a historic landmark judgement shaping the criminology and victimology aspect of law.

The battle of Bilkis Bano in the legal fraternity proves that crime and punishment are two sides of the same coin. While the victim is granted relief as justice prevails, the liberty of the convicts has been taken away and they have been ordered to return to prison.

Factual Matrix

The case starts its roots in the year 2002 in Gujarat during the communal riots. 11 members of the protestors who later came to be known as the convicts of the case broke into Bilkis Bano’s house. They then proceeded to gang rape her along with her family members who were as young as 2- days old. The family members were killed, gang raped and severely abused. In total 22 members of her family were brutally murdered.

The case moved to the Supreme Court to Gujarat and then finally to Maharashtra. The accused members were convicted and sentenced accordingly. In an appeal to the Gujarat Sessions court by one of the convicts, remission was granted in the year 2022 upon which all the convicts were free and granted liberty.

In August 2023, Bilkis moved to the Apex Court and pleaded to quash the remission orders along with other PILs which supported her case.

The Issue

The core contemplation of the case was whether the State of Gujarat had jurisdiction in granting remission. While going through the proceedings of the case of conviction, it is evident that the transfer of court occurred from Gujarat to Maharashtra. The special court of Maharashtra convicted the criminals on charges of gang rape and murder. Subsequently, the government of Maharashtra was legally responsible for considering a grant of remission.

When the Government of Gujarat granted remission, it was through the central government which approved it through the way of the Home Ministry in Delhi.

The mischief :

One of the convicts had filed an application in front of the CBI and the State of Maharashtra that he had important information withheld which would grant him remission. Both the agency and the government of Maharashtra rejected his case and held that remission would not be granted.

He then fraudulently received permission to approach the Gujarat Government for remission. Upon that, it was revealed in the judgement that the State of Gujarat had used the rules of remission which has not been amended as per the central government. The rules used were the 1992 remission policy instead of the 2014 remssion policy. In the new rules, no government is allowed to grant remission to rapists. Furthermore, as per Section 433A of CrPC, a person would not be granted remission if he has been punished under life imprisonment and 14 years have not been elapsed. It has been stated that the Gujarat Government took advantage of the legal system by not appropriating the laws. It was stated that the central law would prevail over the laws of the state regarding remission.

The Judgement

The two bench judgment of the Supreme Court will prevail for years to come. The court held that the State Government of Gujarat had no power whatsoever to grant remission for the 11 criminals. The crime committed against the victim and her family was considered to be a social crime as it resulted in a community frenzy. The court drew proportionated the crime committed with that of the social impact it has. The more socially perverse, the less chance of being granted remission was implied by the court of justice.

The court then interpreted the term “appropriate government” to grant remission and held that the state of Gujarat had no powers to shorten the sentence of the criminals and subsequently usurped its powers. In the current matter, the appropriate government was the state of Maharashtra as the case was transferred by the Supreme Court in the year 2002 as it feared the State of Gujarat may have partiality towards the accused. As per Section 432(7)(a) of the CrPC, the appropriate government would be the government which gave the order of conviction and not any other jurisdiction.

The Supreme Court in vesting its powers also held that the 11 convicts shall not hold the power to remission as the gravity of the crimes committed is severe in nature. The court found it appropriate that the 11 convicts be sent back to prison as they have committed grave crimes against humanity the pain of which is irrevocable.

The court agreed that personal liberty is a most important constitutional value enshrined in Article 21 of the Constitution. But in the current case, the liberty of the 11 men was a result of the mistake of the Gujarat government, an incompetent authority, is set aside. Therefore as per the court, it is only reasonable to send the 11 men back to prison.

Conclusion

The rule of punishment includes the mere chance of reducing the punishment. The court analysed the principles of punishment and vehemently acknowledged that in matters of grave, heinous and diabolical crimes, the predators should not be left scott-free. It is believed that the Gujarat Government made a grave error which should have been interfered with by the Supreme Court in its early stages, further stopping the misuse of power.

The two bench judgement upheld the rule of law which is no one is above the law along with the principle of equality which is everyone is equal in the eyes of the law.

Written by- Sanjana Ravichandran

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