A two-Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Pankaj Mithal passed an Order dated 30.01.2024 in Criminal Appeal No. 1368 Of 2023 in Sheikh Arif Vs. State Of Maharashtra and Anr. and quashed the false rape case filed against the Appellant and held that maintaining a sexual relationship with consent is not an offence.
i) An FIR was registered in Sadar Police Station, Nagpur based on the Respondent No. 2’s Complaint dated 23.02.2018 under Section 376(2) of the Indian Penal Code, 1860 (IPC) (Punishment for Rape), Section 377 of IPC (Unnatural offences), Section 504 of IPC (Intentional insult with intent to provoke breach of the peace) and Section 506 of IPC (Punishment for criminal intimidation) in addition to various clauses of Section 3 of the Scheduled Castes and Scheduled Tribes, 1989 (Prevention of Atrocities Act)(Punishment for offences atrocities). The said Complaint disclosed that Sheikh Arif, the Appellant and the Respondent No. 2 got acquainted with each other in the year 2011.
ii) That the Respondent No. 2 was employed at a beauty parlour at that time. The Appellant used to go to the same parlour and undergo a hair-cutting course.
iii) The Respondent No. 2’s case is that in June 2011, the Appellant proposed to her. Further, she agreed and they started meeting. The allegations against the Appellant were that he made an effort to make a physical relationship with her in the year 2011, but the Respondent No. 2 refused. However, in the year 2012, by giving a false promise of marriage, the Appellant had sexual intercourse with her on a number of occasions.
iv) That in February 2013, the Respondent No. 2 got pregnant and subsequently, the Appellant, in March 2013 took the Respondent No. 2 to a hospital for an abortion. The Appellant, after the abortion, continued to have physical relationship with the Respondent No. 2.
v) Further, the Appellant and the Respondent No. 2 got engaged in July 2017.
vi) That the Respondent No. 2 was pregnant for the second time in December 2017 and the Appellant said that they would get married soon. Based on this, the Respondent No. 2 did not undergo an abortion and she was treated for pregnancy in a hospital at the instance of Appellant.
vii) The allegations of the Respondent No. 2 were that on 18.01.2018, the Respondent No.2 saw photos of an engagement ceremony of the Appellant with another woman in the Appellant’s cell phone.
viii) That the day before the date on which the Complaint was filed, she was informed that the Appellant had married another girl on 22.02.2018.
ix) The case of the Appellant was that the Appellant and the Respondent No. 2 got married on 20.01.2017 at Junglee Peer Baba Dargah. The Appellant stated that he could not produce the original Nikahnama, but a copy thereof was seized by the Police. Further, in the passport issued to the Appellant on 17.08.2017, the Respondent No. 2 appeared as his wife.
x) The Respondent No. 2 filed a case in the Ld. District Court of Nagpur, Maharashtra, which was allowed.
xi) Aggrieved by the Order of the District Court, the Appellant filed CRLA(APL)-440-2018 in the High Court of Bombay at Nagpur. The High Court, vide Order dated 26.02.2021, upheld the District Court’s Order of Conviction.
xii) Aggrieved by the Order dated 26.02.2021 of the High Court, the Appellant filed Criminal Appeal No. 1368 Of 2023 before the Supreme Court.
SUPREME COURT ANALYSIS
The Apex Court, vide Order dated 30.01.2024, made the following observations:
1) The Supreme Court observed that the Appellant had volunteered to deposit Rs. 10 Lakhs with the High Court during the pendency of the Petition before the High Court.
2) That the Apex Court tried to explore the possibility of a settlement between the Appellant and the Respondent No. 2 but the same couldn’t materialise.
3) Further, the Bench observed that in the view of the provisions of Section 375 of the IPC, if the victim of the alleged offence of rape is not under 18 years of age, then, maintaining a sexual relationship with her consent, is not an offence. However, the Apex Court relying on the case of Anurag Soni v. State of Chhattisgarh (2019) 13 SCC 1, observed that if the consent of the victim is based on misconception, such consent is immaterial as it is not voluntary consent. If it is established that from the inception, the consent by the victim is a result of a false promise to marry, there will be no consent, and in such a case, the offence of rape will be made out.
4) The Supreme Court further observed that, when the relationship commenced, the Respondent No. 2 was more than 18 years of age which was admitted by the Respondent No. 2. The averments made in her Complaint showed that their physical relationship started in 2012. Though she claimed that it was a forced relationship, the Respondent No. 2 made no grievance about the same till February 2018.
5) That in the span of these 6 years, the Respondent No. 2 got pregnant twice, i.e., once in the year 2013 and in 2017. Hence, it cannot be said that the Respondent No. 2 was forced to have a relationship from 2013 to 2017. Moreover, the Appellant and the Respondent No. 2 were engaged in the year 2017. Therefore, in the facts of the case, it was impossible to accept that the Respondent No. 2 allowed the physical relationship to be maintained with her from 2013 to 2017 on the basis of a false promise to marry.
6) The Supreme Court further held that the continuation of the prosecution in the present case will be a gross abuse of the process of law. Therefore, no purpose will be served by continuing the prosecution.
7) That the Appellant had accepted that the Respondent No. 2 was his legally wedded wife and the child born to the Respondent No. 2 was his child.
SUPREME COURT ORDER
The Supreme Court, vide Order dated 30.01.2024, quashed and set aside (i) the Order of the High Court of Bombay at Nagpur dated 26.02.2021, (ii) the Crime No. 78 of 2018 registered in the Sadar Police Station at Nagpur, (iii) as well as the Charge Sheet filed thereof, thereby allowing the Appeal of the Appellant.
Further, the Apex Court directed the Appellant to deposit a sum of Rs. 5 Lakhs with the Ld. Sessions Court at Nagpur within a period of six weeks from 30.01.2024 and also directed the Appellant to file a compliance affidavit along with the documents in the Supreme Court within the period of 7 weeks from 30.01.2024.
Additionally, the amount which was deposited in the High Court by the Appellant together with the interest, if any, accrued, was to be transferred to the Ld. Sessions Court at Nagpur. The Ld. Sessions Court shall invest the said amount in a fixed deposit with any nationalized bank by incorporating the name of the minor child of the Appellant as the depositor and the Respondent No. 2 as the guardian of the minor. The fixed deposit would be renewed from time to time till the child attains majority. The Ld. Sessions Court shall direct the bank in which the fixed deposit is made to pay quarterly interest on the fixed deposit to the Respondent No. 2. The principal amount shall be paid to the child after attaining majority.
On failure of the Appellant to comply with the direction to deposit a sum of Rs. 5 lakhs, the Registry shall list the Appeal before the Supreme Court. As and when the Appellant deposits a sum of Rs. 5 lakhs, the Ld. Sessions Court will permit the Respondent No. 2 to withdraw the same.
The Indian Lawyer