The Bombay High Court has held that the clause fourthly of Section 376 (Rape) will be attractived if a married man deceives a woman and falsely obtains her consent for sexual act under the pretence of marriage.
The single judge bench of Justice N.J Jamadar of the Bombay High Court in this view dismissed the petition of accused seeking discharging of offence.
Brief Facts of Case
The factual matrix of the case is that the petitioner and prosecutrix were married and after a meanwhile, a lady called the prosecutrix and told her that she was the wife of the petitioner and they had two issues out of the wedlock. After that, it was found that the petitioner had deceived her by first representing that he was a bachelor and later claiming that his first marriage was dissolved. The petitioner had allegedly obtained a forged marriage certificate as well. Thereafter, the prosecutrix lodged the FIR for the offenses punishable under sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i), and 494 of the Indian Penal Code,1860.
The learned counsel appearing on behalf of the petitioner contended that the petitioner has committed the offense of cheating and rape by falsely representing that the petitioner is unmarried and obtained her consent. Further, it was contended that the offense under section 376 cannot be made out as it does not even remotely imply that the prosecutrix did not give agreement to the petitioner's purported physical interactions with the prosecutrix. Also, there is inconsistency in the allegations made in the FIR and averments made in the petition.
In the Marriage Petition, the petitioner has stated that the wedding and anniversary celebrations were merely staged events because the prosecutrix had coerced him into playing the part of the "husband" for an upcoming television program. The petitioner played those roles because he enjoyed working in the film and television industries. In actuality, the petitioner and the prosecutrix cohabited as husband and wife despite never getting married.
The learned counsels appearing on behalf of the respondent contended that the petitioner's very claim that the wedding and anniversary ceremonies were merely staged makes the request for discharge unsustainable. Further, it was contended that in any case, it cannot be argued that the offense punishable by Section 376 of the Penal Code has been shown because it is predicated on a false understanding of the term "rape." The case at hand, in their opinion, would unmistakably fall under clause "fourthly," as the petitioner, a married man, had forced the prosecutrix to give her assent under the mistaken belief that he is the man to whom she is legally married although knowing full well that he was not her husband. The crime punishable under Section 376 of the Penal Code is thus prima facie established.
Also, it was contended that the High Court cannot halt the trial after the charge has been framed unless it becomes necessary given the case's unique circumstances to stop the abuse of the court's procedure and uphold the interests of justice. The counsel relied on the judgments titled, ‘Minakshi Bala vs. Sudhir Kumar and Others ’and ‘Union of India vs. Prafulla Kumar Samal and Another’.
High Court's Observation
The court explained that two states of mind are necessary to bring the mischief of clause fourthly. First, a state of mind on the part of the man manifested in the knowledge that he is not the husband of the prosecutrix and that the consent is given under a mistaken belief.
Second, the state of mind of the prosecutrix manifested in her belief that she is lawfully or believes herself to be lawfully married to the man. Now in the present case, the prosecutrix categorically claims that the petitioner convinced her to legalize their marriage and live with her by falsely representing that he was unmarried. The petitioner allegedly married his wife with the prosecutrix while she was still alive, hence the marriage was null and void.
The petitioner reportedly had physical relations with the prosecutrix while being aware that he is not her husband. According to the case's circumstances, the respondent's argument that the prosecutrix would not have provided her assent if it weren't for the petitioner's deception in fraudulently reporting that he was single (while being married) seems to have some merit.
The court held that there are sufficient grounds to proceed against the petitioner, even for the offense punishable under section 376 of the Penal Code. The trial thus must proceed to its logical conclusion. Resultantly, the petition deserves to be dismissed.
CASE TITLE- Siddharth Narendra Banthia V. The State of Maharashtra and Another
CITATION- WRIT PETITION NO.3527 OF 2021
CORAM- N.J.JAMADAR
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