The allegation of rape against the applicant becomes false once marriage is admitted”, observed the Allahabad High Court while granting anticipatory bail to a lawyer accused of rape.
Justice Siddharth was hearing an anticipatory bail of the accused, noting that the survivor “clearly got involved in a sexual relationship with him” and that she also admitted that he had married her later in Pashupati Nath temple, Nepal.
“The allegation of marriage is admitted, the allegation of rape against the applicant becomes false once marriage is admitted. In case dispute arose between the parties after marriage it cannot be covered by allegation of rape. The allegations regarding offence under sections 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of peace) ,506 (criminal intimidation) I.P.C. are not proved from any documentary evidence,” ruled the court.
Allegations
The survivor contended that the accused gained her confidence on the promise of marriage, sexually exploited her and avoided her on the topic of marriage. She said that she was employed in a software company and she engaged him, who is an advocate, for working in her company.
From February 2018, he allegedly started frequenting her house and office and they used to meet outside. In April 2018, they stayed at Taj Hotel, Chandigarh together and he started claiming his personal expenses from the company. She also submitted that they finally got married in Nepal.
Thereafter she contended that he adulterated her drink, affecting her ability to understand and also got her pregnancy aborted. She also claimed that he sexually exploited her, made obscene videos and threatened her about making them viral on the internet. Finally, in 2019 she said that she broke all ties with him as he had also started harassing and beating her.
The accused person’s lawyer, on the other hand, submitted that he had been falsely implicated in this case on account of a business dispute between them. He also pointed out that the FIR in the case was filed after two years.
Court’s observations
The Single-judge Bench opined that the counter affidavit filed by her had no mention in the swearing clause on what basis the averments were made in different paragraphs. He said, “Which paragraph is based on personal knowledge which are on the basis of record and which are on legal advice are not clear. The swearing clause of the counter affidavit is blank. it is defective and not in accordance with law, therefore it can be ignored.”
The High Court relied on Dhruvaram Murlidhar Sonar v. State of Maharashtra, in which it was held that the offence of rape will not be made out if the survivor makes a conscious decision to be involved in sexual relationship with the accused without pressure or misconception and not involving passive submissions of the alleged survivor.
The court also referred to the case of Shiv Shanker Vs. State of Karnataka (2019), where the Apex Court had held that “long physical relationship and living with accused informant as husband and wife and subsequent breach of promise of marry will not make out offence of rape.” Accordingly, the accused was granted pre arrest bail.
In related news of rape allegations, journalist Tarun Tejpal was recently acquitted by a Goa court that held that there was no evidence to support the allegations made by the survivor and that she “did not demonstrate any kind of normative behaviour” that a victim of sexual assault “might plausibly show”.
Although marital rape is not recognised as an offence under the Indian Penal Code, the order given by Justice Siddharth does not point to this fact, but instead states that the grounds for granting him pre arrest bail was the consensual sexual relationship between the now separated couple. Taking note of the complainant’s past sexual history with others or the alleged accused has always been used as a tactic to undermine the credibility of the complainant. A Delhi Court had recently rejected a TV anchor’s anticipatory bail plea after noting that “evidence of character or previous sexual experiences” are not relevant in sexual assault cases. But this precedent is unfortunately not being followed in other trials.
The order may be read here:
Related:
Tarun Tejpal case: What should a rape survivor look like?
Goa court acquits journalist Tarun Tejpal in rape case
It’s A ‘Lose Lose’ Situation for most Sexual Harassment/Rape Complainants