While ruling on a very relevant penal law subject which has been in the news quite often grabbing the limelight for its rampant misuse, the Uttarakhand High Court at Nainital has in a most learned, laudable, landmark and latest judgment titled Manoj Kumar Arya v State of Uttarakhand and another in Criminal Misc. Application No. 79 of 2021 that was pronounced recently on July 5, 2023 quashed pending criminal proceedings against a man for allegedly having sexual intercourse with a lady for decades on the false promise of marriage. While disapproving in no uncertain terms the continuance of such case, we see that the Single Judge Bench of Hon’ble Mr Justice Sharad Kumar Sharma observed that, “In fact, the offence under Section 376 of the IPC as of now in this modernised society is being misused as a weapon by the females to be misutilized, as soon as there arise certain differences between herself and her male counterpart, and rather it is being used as a weapon to duress upon the other side for a number of undisclosed factors, and it cannot be ruled out, that the provisions contained under Section 376 of the IPC are being rampantly misused by the females.” The Court very rightly concluded that the applicant cannot be impleaded in criminal charges especially when the complainant consented for continuing physical relationship even after the marriage of the applicant. The Court found such act of the complainant to be a valid consent. Accordingly, the pending criminal proceedings were ordered to be quashed and set aside. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Sharad Kumar Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “The content of the FIR apparently speaks in itself as to whether at all, under the peculiar set of circumstances, and the allegations levelled therein, there could at all be an offence under Section 376 of the IPC.”
To put things in perspective, the Bench then envisages in para 2 that, “The complainant/respondent No.2, when she registered an FIR on 30th June, 2020, being FIR No. 308 of 2020, she levelled an allegation for commission of offence under Section 376 of the IPC, as against the named accused person, i.e., the present applicant. But considering the gravity of the offence under Section 376 of the IPC, though apparently, it seems to be a social menace, which is normally levelled against a male, but then, we have to simultaneously balance the equity or and also look into the aspect of the contribution or the active role played by a female for commission of the offence under Section 376 of the IPC.”
As we see, the Bench points out in para 3 that, “The offence under Section 376 of the IPC, is only penal in nature, which provides for a punishment to an accused person who is ultimately found to be involved in the commission of rape. In order to derive as to whether an act complained of in the FIR, actually happens to be a rape itself, Section 376 of the IPC, is to be taken into consideration.”
Tersely put, the Bench states in para 4 that, “There are various facets provided under the definition of rape under Section 375 of the IPC, which primarily is pivoted around a “consent of the opposite sex”. If there is an element of consent available for the commission of the offence under Section 376 of the IPC or is apparently made out from allegations, it cannot be termed to be a rape because, it is a consensual relationship which was established by the consent of the opposite sex.”
For sake of clarity, the Bench clarifies in para 5 that, “It is only when the ingredient of Section 375 of the IPC is satisfied in the FIR registered by the complainant, that a person could be punished for the penal provisions provided under Section 376 of the IPC, and not otherwise.”
While elaborating on the facts of the case, the Bench enunciates in para 6 that, “The facts of the instant case are, that it is admittedly a complainant’s case, that prior to May, 2005, for over the last 1-1/2 decades, she was in an intimate relationship with the present applicant, and the said relationship with him and had gone to an extent, where they had assured each other to get married, as soon as either of them would get a job. It is contended by the complainant, that under the said pretext, the physical relationship was established at the residence of both the parties, which continued to be established for quite a long time, and even thereafter, when the present applicant had even got married with some other lady, then too, the physical relationship was established by the complainant, with the applicant.”
It would be germane to note that the Bench points out specifically in para 7 that, “When the complainant had voluntarily established a relationship even after knowing the fact, that the applicant is already a married person, the element of consent itself imbibes in it, and once it is established that the consent is present, and which is quite apparent in the instant case, when ever since 2015 till the date of registration of the FIR, when there was no complaint registered by the complainant prior to the present FIR, and when there was no retaliation of any nature whatsoever, and if at all the theory of respondent No.2 is to be accepted about the commission of the offence under Section 376 of the IPC, in that eventuality, it was the responsibility of the complainant, that she could have got herself medically examined as to whether, it was an offence committed against her consent and that a retaliation which could have been established only after her medical examination and the report, which was required to be thus submitted by the Medical Officer. All these aspects are lacking in the instant case.”
In conclusion, the Uttarakhand High Court has made it indubitably clear that rape laws are being increasingly misused as a potent weapon by females upon differences with male counterparts which is really a matter of grave concern. The Court very rightly denied the complainant any relief. The Court also very rightly quashed the proceedings against the present applicant as the complainant consented for continuing physical relationship even after the marriage of the applicant.
By Sanjeev Sirohi
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