A Relationship Between Two Adult Individuals Doesn’t Justify Sexual Assault By One On His Partner: Bombay HC Refuses To Quash Rape Case
The Bombay High Court refused to quash a rape case against the accused, saying that a relationship between two adult individuals does not justify sexual assault by one on his partner.
The Court was deciding a criminal writ petition preferred by the accused seeking setting aside of the case registered against him for the offences punishable under Sections 376, 376(2)(n), 377, 504, and 506 of the Indian Penal Code (IPC).
A Division Bench of Justice A.S. Gadkari and Justice Neela Gokhale observed, “A plain reading of the F.I.R. does indicate that there may have been an intimate relationship between the parties. However, the Complainant has clearly alleged that, the Petitioner had established sexual intercourse forcibly with her and without her consent, despite a relationship. A relationship between two adult individuals does not justify sexual assault by one on his partner. The F.I.R. also narrates various offending acts alleged to have been committed by the Petitioner vis-a-vis the Complainant.”
The Bench noted that a relationship may be consensual at the beginning but the same state may not remain so for all time to come.
Advocate Abhang Suryawanshi appeared for the petitioner while APP Anamika Malhotra and Advocate Mahindra Deshmukh appeared for the respondents.
Factual Background -
The complainant’s case was that she obtained Khulanama from her husband as per the practices of Muslim Religion and her parents had expired in 2021 during Covid-19 pandemic. She resided with her 4-year-old son and since May 2022, the petitioner came to live on rent next door to her along with three friends. They both starting chatting with each other on phone and gradually their relationship became intimate. The petitioner declared his love for her and promised to marry her. He demanded that they should indulge in sexual relationship, however, the complainant consistently refused for the same. As per the complainant, in July 2022, the petitioner came to her house and threatened her that if she refused to marry him, he would commit suicide.
Ignoring her resistance and consistent refusal, the petitioner forced the complainant for sexual relationship and raped her. He also allegedly borrowed money from her frequently and did not repay the same. The complainant then demanded that he marry her and reveal their relationship to his family members but he told her that he will marry her after he gets a job and once again raped her despite her resistance. It was also alleged that he used to force her to indulge in unnatural sex with him. Thereafter, he allegedly distanced himself and started avoiding her. His family members abused her and told her that she belonged to a different case and hence, there was no question of marriage between the two. They abused and beat her and the petitioner threatened to kill her and her son. She was frightened and therefore, lodged FIR.
The High Court in view of the facts and circumstances of the case said, “Whenever one of the partners show their unwillingness to indulge in a sexual relationship, the character of the relationship as ‘consensual’ ceases to exist. The allegations in the present F.I.R. do not demonstrate a continuous consent on the part of the complainant. The allegations demonstrate that even though the Complainant was desirous of being married with the Petitioner, she definitely was not inclined to indulge in sexual relationship with him. The present case is not one of those cases where there is a bonafide intent on the part of Petitioner to marry the Complainant on the assurance of which the parties enjoyed intimate relationship but unfortunately the same did not fructify in a marital tie.”
The Court further noted that the Apex Court has distinguished between giving a false promise and committing breach of promise by the accused. It remarked that the Apex Court has observed that in case of false promise, the accused right from the beginning would not have any intention to marry with the prosecrutrix and would have cheated and deceived her by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise.
“In the instant case, we do not think that the relationship between the Petitioner and the Complainant in respect of indulging in sexual activities was consensual to justify quashing of the criminal Complaint at the threshold. It is the probable defence of the Petitioner that their relations were consensual in nature. We also do not think that the Complaint in pursuance of which the F.I.R. has been registered, lacks the ingredients of the offense as alleged”, it concluded.
Accordingly, the High Court dismissed the petition.
Cause Title- Amol Bhagwan Nehul v. The State of Maharashtra & Anr. (Neutral Citation: 2024:BHC-AS:25241-DB)
