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False rape case to claim Custody

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 9
Case :- MISC. BENCH No. – 30715 of 2018

Petitioner :- Dr.Prof. Ravi Dev @ R.D. Singh
Respondent :- State Of U.P. Thru. Secretary Home & 2 Others

Counsel for Petitioner :- Rishad Murtaza,Ajay Singh,Pranshu Agrawal
Counsel for Respondent :- Govt. Advocate,Ms. Neha Rashmi

Hon’ble Ajai Lamba,J.
Hon’ble Rajeev Singh,J.

(ORAL)

1. The petition seeks issuance of a writ in the nature of Certiorari quashing F.I.R. No.458 of 2018, under Sections 341, 323, 354(Ga), 376, 377, 506, 313 and 511 I.P.C., Police Station Mahanagar, District Lucknow.

2. We have heard Shri I.B. Singh, learned Senior Advocate assisted by Shri Rishad Murtaza, Advocate, Shri S.P. Singh, learned counsel for the State and learned counsel for respondent no.3.

3. Order dated 24.10.2018 notices the gist of the issue raised by the petitioner. The order reads as under :-

“1. The petition seeks issuance of a writ in the nature of Certiorari quashing F.I.R. No.458 of 2018, under Sections 341, 323, 354(Ga), 376, 377, 506, 313 and 511 I.P.C., Police Station Mahanagar, District Lucknow.

2. It has been pleaded that the petitioner was in live in relationship with respondent no.3 from 2013 to 2018. There is a child born from the loins of the petitioner. Proof of the circumstances has been placed on record as Annexures-4 to 7.

It has been pleaded that the petitioner and respondent no.3 are well to do and literate people. Respondent no.3 refused to give the custody of the child to the petitioner, therefore, the petitioner has initiated the proceedings under the Guardians and Wards Act, 1890 vide Annexure-9. In counter blast, the impugned FIR has been registered de hors the true facts.

3. Learned counsel for the petitioner has referred to the judgment of the Supreme Court of India in (2013) 7 SCC 675, Deepak Gulati Vs. State of Haryana and an order reported in (2018) 7 SCC 729, Aloka Kumar Vs. State of Karnataka and others.

4. We have considered the contentions of learned counsel for the petitioner. In Deepak Gulati’ case (supra) the following has been held :-

20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.

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21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.

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5. In Aloka Kumar’s case (supra) the following has been observed:- 2. The criminal case registered by Respondent 2 is to the effect that the petitioner and daughter of Respondent 2 lived together for six years. The petitioner had promised to marry her but backed down. Thus, she was induced for the intercourse during the cohabitation on that consideration and not by free consent. The petitioner committed the offence under Section 376 of the Penal Code, 1860. The trial court having taken cognizance, the petitioner approached the High Court for quashing. The High Court rejected the prayer for quashing.

3. In connected matter, SLP (Cri) No. 3348 of 2018, notice has been issued and stay granted [M. Govinda v. State of Karnataka, 2018 SCC OnLine SC 751, wherein it was directed:”Issue notice. In the meantime, there shall be stay of further proceedings.”] . Accordingly, let this petition be heard along with the said matter. We also grant interim orders in the same terms.

4. During the course of hearing, one of the question which has been taken up for consideration whether, on account of long cohabitation, even if the relationship is held to be consensual and the petitioner is not held liable for the offence alleged, the petitioner can be fastened with the civil liability treating the relationship to be de facto marriage in view of long cohabitation. This interpretation may have to be considered so that a girl is not subjected to any exploitation and is not rendered remediless even if a criminal offence is not made out. Somewhat identical issue has been the subject-matter of consideration in several decisions, including Vidhyadhari v. Sukhrana Bai; Pyla Mutyalamma v. Pyla Suri Demudu; Chanmuniya v. Virendra Kumar Singh Kushwaha and Badshah v. Urmila Badshah Godse. The issue is also discussed in an article published in “Live-In Relationship : Impact on Marriage and Family Institutions.”

6. Ms. Meha Rashmi, Advocate has put in appearance for respondent no.3. Her power of attorney is taken on record.

7. Before entering into the intricacies of the case, we would like to summon the petitioner and respondent no.3 to the Court to see whether the dispute can be settled outside the Court in view of its peculiar nature. 8. List on 19.11.2018 in high up of the list.

9. The petitioner and respondent no.3 are directed to remain present in Court on the next date of listing.

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10. The petitioner be not taken in custody till the next date of listing. 11. Learned counsel for respondent no. 3 states that respondent no. 3 apprehends harm at the hands of the petitioner. In view of apprehension of respondent no. 3, we hereby direct the petitioner not to make any attempt to get in touch with respondent no.3.

We further direct that the petitioner shall not visit Itaunja Township falling in Lucknow district.

12. In the meantime, we hereby direct Superintendent of Police (Rural), Lucknow to conduct the investigation himself. It be specifically investigated whether the petitioner and respondent no.3 were living together and had consensual relations.

Let statements of the neighbours of the alleged address where the petitioner stays be recorded for verifying the said fact. This direction is being issued to verify the fact whether the relationship between the petitioner and respondent no.3 was consensual or under duress, or for any other reason.”

4. Counter affidavit has been filed on behalf of respondent no.3 in Court which is taken on record.

5. Short counter affidavit has been filed on behalf of the investigating agency in Court which is taken on record. In the short counter affidavit filed on behalf of the prosecution it has been stated that the investigation has been concluded. No incriminating evidence has been found in the course of investigation.

It has been pointed out in the short counter affidavit that in the course of investigation it has been found that the petitioner and the victim/complainant were living together for the last four and half years. The relationship between them was consensual. The prosecutrix agreed to have physical relations with the petitioner on account of love for him. It has further been found that a son named Arjun Deo Singh was born out of the relationship who is presently three years old.

It has further been found in the course of investigation that there was some dispute between the petitioner and the complainant on account of which the complainant alongwith the son left the house of the petitioner. The petitioner has filed a suit in Family Court to claim custody of his son Arjun Deo Singh. The matter is subjudice. When the complainant came to know that the petitioner is trying to take custody of the son by filing a case in the Court, being aggrieved and in retaliation, the impugned first information report has been registered. Consequently, final report has been prepared.

6. From the above it is evident that cause of action does not survive.

7. The petition is disposed of as infructuous.

Order Date :- 7.2.2019
Nishant/-

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