Delhi High Court

Sakshi Mehta vs State & Anr. on 10 December, 2019

$~7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision:10.12.2019

+     CRL.REV.P. 19/2017 & CRL.M.A. 302/2017 (STAY)
      SAKSHI MEHTA                                         ..... Petitioner
                         Through       Mr. Siddharth Tyagi, Adv.

                         versus

      STATE & ANR.                                       ..... Respondents
                         Through       Mr. P L Sharma, APP for State
                                       Insp. Usha Sharma, ATO/Kanjhawla
                                       & SI Vikram, PS Hari Nagar
                                       Mr. S S Bhatia, Adv. for R-2

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks setting aside of order

dated 26.09.2016 passed by Learned Additional Sessions Judge, (Special

Fast Track Court) / 01, West District, Tis Hazari Courts, Delhi in S.C. No.

567405 of 2016 arising out of F.I.R. No. 1215/2014 registered at P.S. Hari

Nagar for the offences punishable under Section 376/498A/406 IPC.

2. The brief facts of the petitioner's case are that in the year 2007, after

completing her graduation from Ambala (Haryana), the petitioner had

shifted to Gurgaon with relatives and later on rent basis and started working

in MNC namely, M/s. Omkar InfoTech Ltd. in the BPO - Travel (sales)

Segment, where she met respondent no.2, who approached her for some

office work. After the office, on that day itself, respondent no. 2 asked for

coffee etc, to her and thereupon, she came to know that respondent no. 2 had

already been stalking her since long and gathering knowledge about her, like

from where she was, what does she wear, with whom does she live etc.

Thereafter, soon their acquaintances turned into close friendship, they had

been meeting regularly after their working shifts. During that time

respondent no. 2 had an Alto car, in which they used to go both for long

drives twice or thrice a week. In those days, the respondent no. 2 used to

bring South Indian food from his home, which was being cooked by his

mother to allure her.

3. Further, the case of the petitioner is that sometime in the year 2007,

near the birthday of the petitioner, the respondent no. 2 drove her to Taj

Mahal, Agra, where the respondent no. 2 proposed her and thereon, the

friendship turned into relationship, based on future commitments to marry

each other. It was late evening in Agra and the respondent no. 2 wanted to

stay there in a hotel overnight but she was not comfortable with the same,

accordingly, they returned the same night, post which the respondent no. 2

stayed at a friend's residence in Gurgaon. On 17.10.2007, the petitioner had

gone to USA with her maternal grandfather, even there also they were in

regular contact with each other but respondent no. 2 grew insecure about the

petitioner, being miles away for 3 months as her trip was scheduled. When

she informed respondent no. 2 that she was also aspirant for her further

education in the USA, the respondent no. 2 insisted that he wanted to join

too and on checking, the petitioner found that the respondent no. 2 cannot

join there, because he did not have a regular bachelor's degree. Due to this

reason, the respondent no. 2 wanted the petitioner to return sooner,

accordingly, returned from USA to India in February, 2008. Thereafter,

found that respondent no. 2 may be eligible for an admission in Malaysia,

but he was adamant that they should apply only to Malaysia and nowhere

else. When their admission was confirmed in Malaysia, the respondent no. 2

wanted them to live together in Malaysia, but the petitioner told that same

would not be possible before marriage. Thereafter, respondent no. 2 told her

that his family would not agree for the petitioner as she was a Punjabi girl

and he was a Tamil Brahmins so, only way was to first marry and then

disclose the same to the families. When she told her family about respondent

no.2, they too disagreed, stating reason that he is not the right person for her,

therefore, they planned to marry on 08.07.2008 without informing their

families.

4. Accordingly, the petitioner had to arrange the clothes and jewellery

including ring etc. for both of them and the respondent no. 2 had to arrange

the temple and material required for the ceremonies of the marriage.

Marriage was solemnized on 08.07.2008 at Venkateswara Temple, Sector-3,

R.K. Puram, New Delhi, before 2 priests with all requisite formalities and

the temple fee/donation was paid by respondent no.2. On the date of

marriage, they were accompanied by some friends too. Thereafter, they went

to Ambala to her house to disclose the marriage to her parents. Family of the

petitioner lost their temperament at the first sight but accepted the marriage

later on. Thereafter, they went to respondent no.2's sister's house in Dilshad

Garden, Delhi and informed about the marriage. The parents of the

respondent no. 2 created a complete melodrama, but finally accepted the

marriage on the condition that the said marriage will not be disclosed to the

public at large until they complete their MBA and return to India.

5. Accordingly, they went to Malaysia and took a premise to reside on

joint basis in Cempaka, Malaysia in a rented home from Lee Huey Miin

(Athena) and the petitioner used to pay the rent alone and take care of all the

household expenses. The respondent no. 2 used to say that he had asked his

family for money too whereas she wondered where the respondent no. 2

used it. She also argued with him about where the money went because she

figured out that the respondent no. 2 was using money on movies, visiting

dirty areas, stalking girls and consuming alcohol. When petitioner

confronted to him, he replied it was none of her business and beat her black

and blue. He used to beat her on several occasions because of which she

almost lost her right eye sight and took treatment at Columbia Asia Hospital.

6. Further case of the petitioner is that in Malaysia, respondent no. 2

suddenly started a new phenomenon of having unnatural sex like oral sex

during her periods and anal sex etc. Whenever, the petitioner revolted, the

respondent no. 2 threatened her that he will go to other girls. It was

disclosed to all their friends in Malaysia that they got married in India and

are husband and wife. They celebrated their marriage anniversary and Karva

Chauth in Malaysia. They had also gone for holidays in Malaysia with other

common friends, one of which was 100% sponsored by one of her lecturer

Mr. Baharin, who the petitioner assisted in teaching at the university.

7. One day the petitioner come to know that respondent no. 2 was in a

relationship with a girl named Erina and thereafter, when she confronted

him about the same, he fought with her and therefore, the petitioner planned

to come back to India. Respondent No. 2 being afraid also travelled with

her and they left their research and internship in Malaysia incomplete and

returned to India.

8. Further, the case of the petitioner is that, after returning from

Malaysia in October 2009, the petitioner and the respondent no. 2 both were

residing separately, and the petitioner was living with her parents in Ambala,

however, she was very disturbed due to respondent no. 2's illegitimate

relationship which she had found in Malaysia and his family's reaction to her

complaints. She decided to travel to USA to her relatives for a while, so she

left in November, 2009 for USA. When she was in USA, he tried to contact

her several times promising that if she would come back, he would change.

Accordingly, the petitioner came back to India from USA, they were still

residing separately due to the fear of society because their marriage was not

disclosed in public, but they were in touch with each other all time. The

respondent no. 2 suggested her to live in the same old rented PG as the

respondent no. 2 had more access there since it was close. Thus, in this

manner the marriage was kept secret from the society.

9. As the respondent no. 2 has weak eyesight it is tough to ride a bike to

office at night. Respondent No. 2's parents promised that upon compliance

of this condition, soon the marriage will be disclosed to the public by

performing fresh set of formalities in front of relatives. It was also insisted

that petitioner's parents should give her all their money as the petitioner is

the only daughter, they must do best possible for respondent no.2. Being

helpless, her parents asked respondent no. 2 to look for a decent flat and in

June 2013, respondent no. 2 found out a flat in Sector-37, Gurgaon, of BPTP

builders for a total consideration of Rs. 40 Lacs which was near his office

too. The respondent no. 2 paid about 50,000 for her ring but took the money

back in cash. The respondent no. 2 asked her to purchase clothes and shoes

for him for the engagement, which she did. For the flat, respondent no. 2

had suggested, payment of Rs. 20 Lacs to be paid in September 2013. But

due to the reasons of financial crunch, the said payment could not be made

to the builder, therefore, on 08.12.2013, the respondent no.2's parents did

not attend the engagement ceremony and it was a huge shock to the

petitioner and her family. In addition to this, respondent no. 2 even

deactivated his Facebook profile so that no one, except the guests at the

engagement and his office colleagues, would become aware of this

engagement.

10. It has been observed vide impugned order dated 26.09.2016 passed by

the ASJ (Special Fast Track Court) that no case under Section 376 IPC is

made out against respondent no. 2. As far as Sections 498A & 406 IPC are

concerned, the same are triable by Metropolitan Magistrate. Accordingly,

the case file has been returned with a request to assign the same to a court of

competent jurisdiction for disposal as per law.

11. During the course of arguments, learned APP for the State submits

that there are specific allegations levelled against the respondent no. 2 for

committing sexual exploitation of the petitioner and hence the discharge

under Section 376 IPC is illegal and perverse.

12. It is not in dispute that petitioner had married accused / respondent no.

2 on 08.07.2008 at Venkateswara Temple, Sector-3, R.K. Puram, New Delhi

but the fact of marriage was not disclosed to the society at large as per

insistence of her husband (respondent no. 2). However, both stayed as

husband and wife for 6 years, including their stay in Malaysia.

13. The petitioner alleged demand of dowry by the parents of respondent

no. 2 including demand of flat, gold jewellery etc. though no arguments

have been advanced by the learned counsel for Respondent no. 2 on this

aspect. But it has nowhere been claimed by the petitioner that even once

respondent no. 2 had denied the function of their marriage.

14. During the course of arguments, learned counsel for complainant /

petitioner had argued that since the accused had denied having been married

with her, it becomes the case of commission of rape on the part of accused,

hence, offence u/s 376 read with section 493 IPC is made out. As discussed

hereinabove, no case is made out under Section 376 IPC. As regards section

493 CrPC, for the sake of convenience, the same is reproduced hereunder:-

"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.--Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

15. It is observed by the Trial Court that there is no accusation of any

deception by the respondent no. 2 to the petitioner in the entire revision

petition, admittedly, the parties entered into sexual intercourse, post their

marriage. And hence, applicability of section 493 IPC is also ruled out.

16. Considering the fact that even if it is presumed for a moment that no

formal marriage took place, yet both of them had consenting sexual relations

and hence does not attract 376 IPC. Therefore, Trial Court has rightly

discharged respondent no. 2 under Section 376. Further, since it is an

admitted fact of the petitioner that the parties have solemnized the marriage

on 08.07.2008 and have lived together as husband and wife for 6 years, and

only thereafter, physical relations were established between them, thus, no

case u/s 376IPC is made out against the accused as marital rape has not been