Gujarat High Court
Anjanaben W/O Bhavinbhai ... vs State Of Gujarat on 8 December, 2023
NEUTRAL CITATION
R/CR.MA/20522/2023 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 20522 of 2023
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ANJANABEN W/O BHAVINBHAI DEVSHANKARBHAI MODHA
Versus
STATE OF GUJARAT
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Appearance:
MS URVASHI K MEHTA(11469) for the Applicant(s) No. 1
MR. MANAN MEHTA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/12/2023
ORAL ORDER
1. The present successive application is filed under Section
439 of the Code of Criminal Procedure, 1973, for regular bail
in connection with the FIR being C.R. No.I-11208057230026 of
2023 registered with the Rajkot Cyber Crime Police Station,
Rajkot of the offence punishable under Sections 354(a)(c),
376, 376(D), 498(a), 506(2), 508, 509, 34, 114 and 201 of IPC
as well as Sections 66(e) and 67(a) of I.T. Act.
2. FACTUAL EXPOSE' as borne out from the pleadings are
as follows:
2.1 That the complainant got married with the son of the
applicant-accused somewhere in the year 2022 and,
thereafter, she started living at her matrimonial home. There
are in all total three members at her marital home i.e, mother-
in-law, father-in-law and her husband. In the wedlock, two
baby boys were born. It is alleged that after sometime of the
marriage, the father-in-law started instigating her husband to
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record the nude photographs and videos of the complainant
so that they can upload it on one particular porn website.
Accordingly, the husband started recording her nude videos in
his mobile and thereafter forwarded it on the mobile of her
father-in-law. The mother-in-law of the complainant was also
aware about the same and all these acts were being done in
the presence of the mother-in-law also. As per the say of the
complainant, as her marital family was in desperate need of
money to prevent their hotel being sold out by the other
partners, they decided to record the nude videos of the
complainant to upload on one porn website against which they
will get money. Therefore, the husband of the complainant
started recording their intimate moments in the camera of his
mobile. The complainant told her not to do so, however, her
husband said her to do whatever his father is saying. She then
complained to her mother-in-law, who also sided with her son
an husband and told the complainant to act as per the say of
her son and husband. Not knowing what to do, complainant
merely relented. It is also alleged that when the complainant
was alone at home, the father-in-law was molesting her. The
husband of the complainant made her to do things, which
according to the complainant, were unnatural. Thus, to fulfill
their common intention, all the accused persons, in
connivance with each other, have committed the said offence.
The complainant had left with no other option but to seek the
legal help. Therefore, she gathered courage and lodged the
impugned FIR against all the accused persons.
3. Learned advocate Ms. Urvashi Mehta appearing for the
applicant has submitted that the so called incident took place
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on 01.09.2022 and the impugned FIR came to be lodged on
13.08.2023 and the applicant-accused was arrested on the
very same day, i.e., on 13.08.2023 and since then he is in jail.
It is further submitted that now the investigation has been
completed and charge-sheet has also been filed. Learned
advocate Ms. Mehta has further submitted that the applicant-
accused is the mother-in-law of the complainant and it is
alleged in the first information report that the present
applicant-accused has aided, instigated and abetted the
accused No.2, i.e, the husband of the complainant to commit
such an offence and, therefore, she has been arraigned as an
accused. The only role attributed to her is of abettor. Learned
advocate Ms. Mehta has submitted that the present applicant-
accused is a lady aged about 45 years and she is behind the
bar since 13.08.2023. It is further submitted that so far as the
offence under the provisions of Sections 354(A)(C), 498(A),
508, 509, 34, 114 and 201 of the IPC are concerned, the
maximum punishment to be imposed is of three years and for
the offences punishable under Sections 506(2) of IPC and
Sections 66(e), 67(a) of the I.T. Act, the maximum punishment
to be imposed is of seven years. Learned advocate Ms. Mehta
has submitted that the applicant-accused is a lady and
nowhere in the entire body of the complaint it is alleged that
she has aided or abetted her husband to make physical
relationship with the complainant. Even there are no
allegations against the father-in-law of forcing or pressurizing
the complainant to make physical relationship with him. The
only allegations made against the father-in-law is that he was
touching on her private parts under the pretext of applying
ointment on her private part. It is further submitted that in
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the entire body of the complaint, the only allegation made
against the applicant is that when the complainant
complained her about such illegal demands at the end of her
father-in-law and husband, the applicant accused took side of
her son and husband which do not attract the provisions of
Sections 376 and 376(D) of the IPC. Even if it is presumed
that the burden casts upon the prosecution to prove the
foundational facts beyond all reasonable doubt the FIR did not
contain the offence alleged against the petitioner for the
offence punishable under Section 376 of the IPC. It is further
submitted that there is no instance narrated in the complaint
that would touch upon the offence punishable under Section
498A of IPC.
4. In such circumstances, referred to above, learned
advocate Ms. Mehta prays that there being merit in this
application, the same may be allowed and the applicant-
accused may be released on bail on any suitable terms and
conditions.
5. The learned APP appearing on behalf of the respondent-
State has opposed grant of regular bail looking to the nature
and gravity of the offence. Learned APP has submitted that
the role of the present applicant-accused is clearly spelt out
from the compilation of the charge-sheet papers. Learned
APP Mr. Mehta has further submitted that the present
applicant-accused has actively participated in the commission
of the crime since beginning and the said fact is clearly
reflected from the statements of the witnesses. It is very
categorically stated by the complainant that her husband and
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father-in-law were acting and behaving in such an unusual
manner that cannot be acceptable in the Society. It is very
specifically alleged in the complaint that all the accused
persons were forcing the complainant to record her own nude
videos by wearing mask which would be uploaded on one
particular porn website and by doing so, they will earn some
volume of amount from the said website. It is further
submitted that the father-in-law of the complainant was
behaving in a very indecent manner with the complainant in
the presence of the applicant as well as her son and as and
when the complainant tried to raise her voice against such an
act at the end of the father-in-law, she was overpowered by all
the family members. Not only that, the applicant also
administered threat to develop physical relationship with the
father-in-law and, therefore, the active involvement of the
present applicant-accuse is clearly found out from the
materials available on record. Learned APP has submitted that
considering the role attributed to the applicant-accused, this is
a fit case wherein discretionary power of this Court is not
required to be exercised in favour of the applicant-accused.
6. Learned advocate Mr. Rahul Dave has submitted that he
has received instructions to appear on behalf of the
complainant to oppose the present bail application. Learned
advocate Mr. Dave has submitted that the applicant-accused
has played an active role in the commission of such a heinous
crime and, therefore, she does not deserve any discretionary
relief from this Court. It is further submitted that the
complainant did not leave her matrimonial house on her own
but she had to left her marital house due to continuous and
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constant torture and mental harassment meted out by all the
accused persons. Learned advocate Mr. Dave has also
submitted that the incident as alleged is of very serious
nature. The complainant was threatened for dire
consequences and, therefore, due to fear and shyness, she did
not tell anything about such sexual assault upon her to
anyone including her parents. Learned advocate Mr. Dave has
submitted that the present applicant-accused was one of the
members of the WhatsApp group in which such videos were
shared. It is further submitted that during the course of
investigation, mobile phones of all the accused persons were
recovered by the police and they found that such videos were
deleted and some of them were recovered by the police which
has led to show the truthfulness of the allegations made by
the complainant. The mobile phones are sent to FSL and
after the receipt of the report from the FSL, the picture would
be more clear. It is pertinent to note that when such videos
were being shared in the WhatsApp group, the applicant did
not even try to stop such an act though she was member of
the said group which clearly shows her involvement in the
crime. Learned advocate Mr. Dave has also submitted that
being a lady, the applicant had not done anything to save the
integrity of another lady and, therefore, she does not deserve
any relief on the ground that she is a lady. Even in some of
the photographs, the applicant-accused also found to be there
along with his son touching the private parts of the
complainant. Learned advocate Mr. Dave has submitted that
as the father-in-law of the complainant is believing in
superstitions, when the complainant was seven months
pregnant, she was forcibly compelled to give a pre-muture
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birth to a child by her in-laws which is evident from the
statement of the doctor which is part and parcel of charge-
sheet.
7. In such circumstances, referred to above, learned
advocate Mr. Dave prays that the present application being
devoid of any merit, the same be rejected and the applicant-
accused may not be enlarged on bail.
8. I have given my anxious consideration to the
submissions made by the learned advocates appearing for the
respective parties and perused the material on record.
9. In the light of the submissions made by the respective
learned advocates, the following points arise for my
consideration:
(i) Whether cognizance being taken against the
applicant-accuse for offence punishable under Section
376 of IPC is tenable in law?
(ii) Whether the allegations against the applicant-
accused for other offences are tenable in law?
Point No.(i):
Whether cognizance being taken against the
applicant-accused for offence punishable under
Section 376 of IPC is tenable in law?
10. To consider this issue, it is germane to notice what drove
the complainant to register the complaint and what drives the
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applicant-accused to this Court. The entire issue springs from
the complaint registered by the wife alleging commission of
brutal sexual acts by the husband, father-in-law and mother-
in-law against her. After registration of the complaint,
investigation was conducted into the matter. After
investigation, the Police have filed their final report/charge
sheet.
11. The charge sheet filed by the Police after investigation
also depicts graphic details of the demonish lust of the
husband of the complainant and her father-in-law whether
for money or for sexual satisfaction in which the applicant-
accused has also very actively participated. Herein the case
on hand, the allegations are very serious in nature. The
husband himself has recorded their lovemaking moments in
the camera of his mobile which were subsequently shared in
one WahtsApp group of the family and also uploaded on one
porn website, namely, charubate-free adult. It is not that the
husband is doing such an illegal activity with any woman with
whom he has an illicit relationship. The victim in the present
case is his own wife whose videos were being uploaded on the
porn website by her husband itself. The applicant-accused is
the mother-in-law of the complainant who was also very well
aware about the said fact. The allegations are also to the
effect that the father-in-law got installed the C.C.T.V camera in
the bedroom of the complainant and both the applicant-
accused and the father-in-law were watching the lovemaking
moments of her own son and daughter-in-law on the TV
screen in their bedroom. Not only that, they were compelled
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their son to take nude videos and photographs of the
complainant and shared it on one family WhatsApp group in
which the applicant-accused is also the member of the group.
Therefore, it appears that the present applicant-accused was
very well aware about such an illegal and shameful act. It is
alleged by the complainant that initially when she complained
about the sexual assault meted out by her husband and
father-in-law to the applicant-accused, she took side of her
son and husband and told the complainant to keep quiet.
During the course of investigation, the Investigating Officer
has retrieved some photographs in which the applicant-
accused is clearly shown with her son touching the private
part of the complainant. Therefore, it cannot be said that the
applicant-accused was not aware about the sexual assault and
harassment meted out to the complainant. It is alleged by the
complainant that in order to earn money from a particular
porn website, they had committed such a heinous act with her
as they were in desperate need of money to save their hotel
from being sold out by the other partners. Whatever might be
the reason behind doing such a heinous and shameful act, the
same must be strictly criticized and the accused must be
punished in order to prevent commission of such type of
offences in future. The applicant-accused being a lady had
not done anything to save the integrity of another lady when
the complainant told her about each and everything happened
with her. She had to prevent her husband and son from doing
such an act and by not doing so, she has played an equal role
that of the other two accused, i.e, the husband of the
complainant and the father-in-law.
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12. Post Republic, India is governed by the Constitution. The
Constitution treats woman equal to man and considers
marriage as an association of equals. The Constitution does
not in any sense depict the woman to be subordinate to a
man. The Constitution guarantees fundamental rights under
Articles 14, 15, 19 and 21 which are right to live with dignity,
personal liberty, bodily integrity, sexual autonomy, right to
reproductive choices, right to privacy, right to freedom of
speech and expression. Under the Constitution, the rights are
equal; protection is also equal.
13. Marital rape is illegal in 50 American States, 3 Australian
States, New Zealand, Canada, Israel, France, Sweden,
Denmark, Norway, Soviet Union, Poland and Czechoslovakia
and several others. In the United Kingdom, which the present
Code largely draws from, has also removed the exception
pursuant to a judgment rendered by the House of Lords in R v.
R in the year 1991. Therefore, the Code that was made by the
rulers then, has itself abolished the exception given to
husbands. Therefore, a man sexually assaulting or raping a
woman is amenable to punishment under Section 376 of IPC.
In most of the cases of such a nature, the usual practice is
that if the man is the husband, performing the very same acts
as that of another man, he is exempted. In my considered
view, the same cannot be countenanced. A man is a man; an
act is an act; rape is a rape, be it performed by a man the
"husband" on the woman "wife".
14. Gender violence is most often unseen and is shrouded in
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a culture of silence. The causes and factors of violence against
women include entrenched unequal power equations between
men and women that foster violence and its acceptability,
aggravated by cultural and social norms, economic
dependence, poverty and alcohol consumption, etc. In India,
the culprits are often known to the woman; the social and
economic "costs" of reporting such crimes are high. General
economic dependence on family and fear of social
ostracization act as significant disincentives for women to
report any kind of sexual violence, abuse or abhorrent
behaviour. Therefore, the actual incidence of violence against
women in India is probably much higher than the data
suggests, and women may continue to face hostility and have
to remain in environments where they are subject to violence.
This silence needs to be broken. In doing so, men, perhaps
more than women have a duty and role to play in averting and
combating violence against women.
15. Sexual violence is varied in degree. At the highest (or,
rather most aggravated) level, is rape with or without
attendant violence. However, there are a substantial number
of incidents which fall within the rubric of sexual violence, that
amount to offences under various penal enactments. These
outlaw behaviours such as stalking, eve-teasing, shades of
verbal and physical assault, and harassment. Social attitudes
typically characterize this latter category of crimes as "minor"
offences. Such "minor" crimes are, regrettably not only
trivialised or normalized, rather they are even romanticized
and therefore, invigorated in popular lore such as cinema.
These attitudes which indulgently view the crime through
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prisms such as "boys will be boys" and condone them,
nevertheless have a lasting and pernicious effect on the
survivors.
16. The United Nations Organisation has defined "violence
against women" as "any act of gender based violence that
results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life." The effect of offensive
behaviour against women, which laws criminalize physical,
verbal, or other acts which threaten or give them acute
discomfort, undermining their dignity, self-worth and respect,
is to silence or subdue the survivor.
17. In The Standard of Social Justice as a Research Process,
two scholars of psychology made a strong indictment of the
(contextually, Canadian) criminal justice process:
"The more general indictment of the current
criminal justice process is that the law and legal
doctrines concerning sexual assault have acted as
the principle [sic] systemic mechanisms for
invalidating the experiences of women and children.
Given this state of affairs, the traditional view of the
legal system as neutral, objective and genderblind is
not defensible. Since the system is ineffective in
protecting the rights of women and children, it is
necessary to re-examine the existing doctrines
which reflect the cultural and social limitations that
have preserved dominant male interests at the
expense of women and children."
Point No.(ii):
Whether the allegation against the applicant for
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other offences is tenable in law?
18. This now takes me to the next point with regard to the
alleged offences against the applicant which are offences
punishable under Sections 498A, 354 and 506 of the IPC. The
complaint clearly brings out the offence punishable under
Section 498A of the IPC. Section 354 of the IPC which deals
with assault or criminal force on a woman with intent to
outrage her modesty is clearly met in the complaint. Section
506 of the IPC deals with criminal intimidation which is also
met in the complaint. Therefore, the offences punishable
under Sections 498A, 376, 354 and 506 of the IPC are all
clearly spelt out in the complaint, in the statements recorded
during the investigation and the contents of the summary in
the charge sheet. None of the grounds urged by the learned
advocate with regard to the offences alleged against the wife
merit acceptance. There are various disputed questions of fact
that have to be thrashed out only in a full-fledged trial. If the
applicant has anything in her defense on the allegations, it is
for her to put up such defense before the Sessions Court and
come out clean in the trial. Therefore, at this juncture, this
Court deems it fit not to interfere with the judgment passed by
the the trial court, particularly, in the light of the aforesaid
allegations.
19. For the foregoing reasons, this application fails and is
hereby rejected.
(DIVYESH A. JOSHI,J)
VAHID
