It is entirely in the fitness of things that while adopting a very pragmatic, progressive and persuasive approach, the Bombay High Court in a most learned, laudable, landmark, logical and latest judgment in Criminal Writ Petition (ST) No.17769 of 2023 that was pronounced as recently as on November 14, 2024 has quashed a case registered against a Mumbai-based lawyer for rape, criminal intimidation and cheating observing that the allegations stemmed from a personal relationship that had soured. He and the complainant had been classmates at school and had lost touch over time. However, they reconnected in January 2020.
It merits noting that the woman was then married and was staying at that time in USA with her husband but she had chosen to return to India with her child after marital discord. It must be mentioned here that the Division Bench of Bombay High Court comprising of Hon’ble Ms Justice Bharati Dangre and Hon’ble Ms Justice Manjusha Deshpande very rightly noted that the complainant was married when she had gotten into a physical relationship with the accused and had chosen to be with him on her own free will. How can then she blame men for rape? How can she exonerate herself all of a sudden from the role played by her in consensual relationship between them?
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Manjusha Deshpande for a Division Bench of the Bombay High Court comprising of Hon’ble Ms Justice Bharati Dangre and herself sets the ball in motion by first and foremost putting forth in para 2 that, “The Petitioner is facing charges for the offence punishable under Sections 376(2)(n), 504, 506 of the Indian Penal Code (“IPC”), pursuant to the filing of FIR No. 14 of 2023, by the complainant i.e. the Respondent No.2 in the present Writ Petition.”
To put things in perspective, the Division Bench envisages in para 3 that, “It is the contention of the Petitioner that during May 2020 to January 2021, the Respondent No.2 was going through a divorce wherein she had sought legal advice from the Petitioner. It is contended by the Petitioner that it was clear understanding between him and the Respondent No.2 that he would not appear for her in any proceedings in Pune but would guide her through process and accordingly the Respondent No.2 agreed for professional fees of Rs.5,00,000/- to be paid to the Petitioner. Since the Petitioner was facing financial crunch due to Covid-19 pandemic, he sought financial assistance from the Respondent No.2, during the period May 2020 to January 2021. It is not disputed that the Respondent No.2 had transferred total Rs. 33,00,000/- to the account of the Petitioner during the said period. It is submitted by the learned counsel Mr. Joshi that out of the total amount which was transferred by the Respondent No.2, Rs.28,00,000/- were towards the hand loan and Rs.5,00,000/- towards the professional fees of the Petitioner. By 03.08.2022, the Petitioner had repaid an amount of Rs.28,00,000/- to the Respondent No.2. The Respondent No.2 has not disputed the repayment of the amount. The Petitioner is relying on message Exchange dated 03.08.2022 wherein the Respondent No.2 has specifically admitted about the full and final settlement of the loan amount.”
Do note, the Division Bench notes in para 4 that, “According to the Petitioner despite having fully settled the loan amount owed by him towards the Respondent No.2, the Respondent No.2 started demanding Rs.5,00,000/- from him and also threatened him that if he did not return the said amount, she would lodge a false complaint against him. He was therefore constrained to file a private complaint against the Respondent No.2, before the learned Metropolitan Magistrate at Kurla, under Section 385 of the IPC on 16.10.2022. Since the Respondent No.2 continued her threats during 28.12.2022 to 05.01.2023 demanding Rs.5,00,000/-, the Petitioner has filed one more private complaint against her before the Judicial Magistrate First Class at Pune on 11.01.2023 for the offence punishable under Section 385 of the IPC.”
As it turned out, the Division Bench enunciates in para 7 that, “As per the allegations in the FIR, it is alleged by the Respondent No.2, that he and the Petitioner were acquainted with each other since their schooldays as they were classmates and had studied in the same school, though they drifted apart by passage of time and got busy in their respective lives they once again came into the contact with each other sometime in January 2020. The Respondent No.2 was staying in United States of America with her husband and a child. While staying in the USA, she was working in Amazon, however due to the discord with her husband, she decided to return to India alongwith her son and sever her ties with her husband and to secure a divorce. Since she was aware that the Petitioner was an Advocate, in order to secure legal advice, she contacted him. But when she contacted him, he informed her that he does not deal with matrimonial matters, however he assured her that he would give her appropriate counsel to represent her proceedings in the courts of law. As per assurance, he has also made available services of the Advocate for which the Respondent No.2 has paid appropriate legal remuneration of Rs. 3,00,000/-.”
It is worth noting that the Division Bench notes in para 19 that, “Though the allegations are made by the Respondent No.2, that she has kept physical relations with the Petitioner against her will and sometimes without her consent. Her subsequent conduct of residing with him for months together alongwith her son and with the permission of her family, does not support her allegations that the Petitioner has committed rape which would fall under Section 376(2)(n) of the IPC. Section 376(2)(n) is about rape repeatedly on the same woman. On bare perusal of FIR itself, it is more than clear that while the Petitioner was still married but she established relationship with the Petitioner for a considerable period of time. She also chose to with him on her own free will as well as with the permission of her family. It is not merely a case of relationship having gone sour, but even financial transactions appear to have gone wrong. However, we are not going to address the issue of financial transactions since the charges which are framed are only in respect of Section 376(2)(n), 504 and 506 of the IPC.”
Be it noted, the Division Bench notes in para 21 that, “It is summarized that consent of a woman in the offence under Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”
It would be worthwhile to note that the Division Bench notes in para 22 that, “Applying the said proposition of law to the present case, the Respondent No.2 herself has stated in her complaint that while her marriage was in subsistence, she has indulged in physical relationship with the Petitioner and she on her own has left him on ground of infidelity. Hence, the case of the Petitioner is fully covered by the prepositions of the law as laid by the Hon’ble Apex Court in case of Pramod Suryabhan Pawar V/s. The State of Maharashtra And Anr (supra).”
It merits noting that the Division Bench then notes in para 23 that, “Yet in another decision of the Hon’ble Apex Court in case of Naim ahmed V/s. State (NCT of Delhi), reported in 2023 LiveLaw (SC) 66 : (2023) 1 S.C.R. 1061, a view has been taken by the Hon’ble Apex Court with the facts similar to that of present Petition, wherein the prosecutrix was a married woman and a mother of three children, who engaged in physical relationship with the accused, later on accusing him of rape. She had also also gone to stay with the accused during the subsistence of marriage with her husband. In the facts of this case only when the some dispute arose between the accused and the prosecutrix, she filed complaint alleging him commission of rape within the meaning of Section 375 of the IPC. In the facts of this case it has been held by the Hon’ble Apex Court that, on the background of the fact that she had resided with the accused during the subsistence of her marriage leaving her husband, it cannot be said that the prosecutrix had given her consent for sexual relationship with Appellant so as to hold Appellant under the misconception of fact guilty for having committed rape within the meaning of Section 375 of the IPC.”
Finally and far most significantly, the Division Bench then encapsulates in para 24 holding that, “Having considered the submissions of respective counsel and having gone through the FIR as well as documents placed on record, we find substance in the grounds raised in the Petition. The reading of FIR as well as the charge-sheet do not disclose that, the allegations of Section 376(2)(n) alongwith Section 504 and 506 of the IPC have been made out by the Respondent No.2 in her complaint. From the complaint itself, it is evident that, the Petitioner and the Respondent No.2, being two consenting adults had indulged in a relationship, which is gone wrong and sour, as a result the respective parties have filed criminal proceedings against each other. If the criminal procedures are allowed to be continued it is not likely to result in conviction. Therefore, it would amount to abuse of process of law if such proceedings are allowed to be continued. Hence in order to secure ends of justice, chargesheet No.61 of 2023, which has now been registered as Sessions Case No. 836 of 2023, pending before the Sessions Judge, Pune, pursuant to filing of C.R. No. 14 of 2022 registered at Alankar Police Station, Pune, for the offence punishable under Section 376(2)(n), 504 and 506 is quashed and set aside.”
In a nutshell, it is high time and now law must be definitely amended so that misuse of rape laws most blatantly by some women complainants as we see in this leading case decided by two most eminent women Judges themselves is checked, combated and crushed by providing for mandatory jail term for those who lodge false and frivolous complaints after years of sexual intercourse most voluntarily and waking up after many years to discover that a man has been raping her for so many years so as to extract maximum money, land and what not from men! This playing of “victim card” by women must now come to an end and she should be liable fully for false allegations just like she is punished for other offences! It brooks no more delay now any longer! No denying!
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