Full Judgment Text
2024 INSC 70
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1368 OF 2023
SHEIKH ARIF …APPELLANT
VERSUS
THE STATE OF MAHARASHTRA
& ANR …RESPONDENTS
J U D G M E N T
ABHAY S. OKA, J.
1) A First Information Report (the impugned FIR) was
registered against the appellant at the instance of the second
respondent for the offences punishable under Sections 376(2),
377, 504, 506 of the Indian Penal Code (for short, ‘IPC’) and
various clauses of Section 3 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities Act), 1989.
FACTUAL ASPECTS
2) The impugned FIR was registered based on the second
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2024.01.30
16:30:04 IST
Reason:
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respondent's complaint dated 23 February 2018 filed with
Sadar Police Station, Nagpur. The said complaint disclosed
Criminal Appeal No. 1368 of 2023 Page 1 of 9
that the appellant and second respondent got acquainted with
each other in the year 2011. The second respondent was, at the
relevant time, employed in a beauty parlour. The appellant
used to visit the same parlour to undergo a hair-cutting course.
The second respondent’s case is that in June 2011, the
appellant proposed her. She agreed, and after that, they started
meeting. The allegation made by the second respondent is that
an effort was made in the year 2011 by the appellant to
maintain a physical relationship with her, but she prevented
him from doing so. However, she stated that in the year 2012,
by giving a false promise of marriage, the appellant had sexual
intercourse with her on a number of occasions. In February
2013, the second respondent realised that she was pregnant.
Therefore, in March 2013, the appellant took the second
respondent to a hospital where abortion was done. Even
thereafter, the appellant continued his physical relationship
with the second respondent. It is stated by the second
respondent that in July 2017, there was an engagement
between her and the appellant. Even after the engagement, the
appellant continued to maintain a physical relationship with
the second respondent.
3) In December 2017, when the second respondent realised
that she was pregnant, the appellant told her that they would
get married very soon. In view of the said assurance, the second
respondent did not undergo an abortion. She was treated for
pregnancy in a hospital at the instance of the appellant. The
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allegation of the second respondent is that on 18 January
2018, she saw photographs of the engagement ceremony of the
Criminal Appeal No. 1368 of 2023 Page 2 of 9
appellant with another woman in his cell phone. The second
respondent stated that a day before the date on which the
complaint was filed, she was informed that the appellant had
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married another girl on 22 February 2018.
4) The case of the appellant is that there was a Nikah
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between him and the second respondent on 20 January 2017
at Junglee Peer Baba Dargah. The case of the appellant is that
he could not produce the original Nikahnama, but a copy
thereof was seized by the police. The case of the appellant is
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that in the passport issued to the appellant on 17 August
2017, the name of the second respondent appears as the wife
of the appellant.
SUBMISSIONS
5) The learned counsel for the appellant urged that the long
relationship between the appellant and the second respondent
was always consensual. He submitted that the appellant had
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married the second respondent on 20 January 2017. He
urged that the prosecution of the appellant is an abuse of
process of law. The contention of the learned counsel appearing
for the State of Maharashtra is that whether the appellant
maintained a relationship on the basis of the false promise of
marriage or not is a question to be decided at the time of trial
as it is a matter of evidence. He invited our attention to the
counter filed by the State in which it was stated that the report
of a handwriting expert has been called for as regards the
genuineness of the signatures on the Nikahnama. The learned
counsel appearing for the State as well as the second
Criminal Appeal No. 1368 of 2023 Page 3 of 9
respondent relied upon a decision of this Court in the case of
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Anurag Soni v. State of Chhattisgarh . The learned counsel
for the second respondent submitted that even if it is assumed
that the second respondent gave consent for maintaining a
physical relationship, the same was vitiated by fraud and
misconception. She submitted that though the Investigating
Officer repeatedly called upon the appellant to produce the
original Nikahnama, he did not submit the same, and
therefore, an adverse inference will have to be drawn against
the appellant. She urged that, in any case, the issues raised
can be gone into only in the trial.
CONSIDERATION OF SUBMISSIONS
6) We may note here that the appellant had volunteered to
deposit a sum of Rs. 10 lakhs with the High Court during the
pendency of the petition before the High Court. This Court tried
to explore the possibility of a settlement between the appellant
and the second respondent. However, the settlement could not
materialise.
7) Now, the question is whether a case for quashing the
criminal proceeding is made out. For that purpose, we are
referring to the material which forms a part of the charge sheet.
In 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,
maintaining a sexual relationship with her consent, is not an
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offence. As held by this Court in the case of Anurag Soni , if
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(2019) 13 SCC 1
Criminal Appeal No. 1368 of 2023 Page 4 of 9
the consent of the victim is based on misconception, such
consent is immaterial as it is not a 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.
8) The second respondent was admittedly more than 18
years old when the relationship commenced. We have carefully
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gone through the complaint dated 23 February 2018 made by
the second respondent based on which the impugned FIR was
registered. Acquaintance between the appellant and the second
respondent started in the year 2011. In June 2011, the
appellant proposed her, and she accepted the said proposal. In
fact, according to the version of the second respondent, their
physical relationship commenced in 2012 and continued till
2017. In February 2013, the second respondent underwent an
abortion. In July 2017, according to the case of the second
respondent, there was an engagement ceremony. In December
2017, the second respondent was pregnant. According to her,
as the appellant had assured to marry, she did not agree for
abortion. The complaint was filed by the second respondent on
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23 February 2018 as she allegedly learned that on 22
February 2018, the appellant was married to another woman.
9) When the complaint was filed, the age of the second
respondent was 24 years. Her year of birth is recorded as 1994.
The averments made in her complaint go to show that their
physical relationship started in 2012. Though she claimed that
it was a forced relationship, she did not make any grievance
Criminal Appeal No. 1368 of 2023 Page 5 of 9
about it till February 2018. In February 2013 and in December
2017, the second respondent was pregnant. It is not the case
of the second respondent that from February 2013 to December
2017, the appellant forced the second respondent to maintain
the physical relationship. In 2013, the relationship resulted in
pregnancy. Still, it continued till 2017. In fact, according to the
second respondent, in July 2017, there was an engagement
ceremony between the appellant and the second respondent.
Therefore, in the facts of the case, it is impossible to accept that
the second respondent allowed the physical relationship to be
maintained with her from 2013 to 2017 on the basis of a false
promise to marry.
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10) Now, coming to the Nikahnama dated 20 January 2017,
it is true that the original Nikahnama could not be produced.
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However, the seizure panchnama dated 21 September 2018
(Annexure: P-14) records that a carbon copy of the Nikahnama
was seized. The statement of one Burhanuddin was recorded
by the police who was present at the time of Nikah. He
confirmed the fact of performance of Nikah between the
appellant and the second respondent.
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11) On 8 May 2018, the police recorded a statement of Dr.
Sarita Rai Vidyarthi, who stated that the appellant and second
respondent used to come to her from November 2017 for advice
and treatment as the second respondent was pregnant. She
stated that the appellant did not tell her that they were married
or that they were living as husband and wife. However, the
second respondent told her that the appellant was her
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husband. She stated that apart from the fact that the appellant
used to accompany the second respondent to her clinic, even
relatives of the second respondent used to visit her clinic.
12) If this material, which is a part of the investigation
papers, is perused carefully, it is obvious that the physical
relationship between the appellant and the second respondent
was consensual, at least from 2013 to 2017. The fact that they
were engaged was admitted by the second respondent. The fact
that in 2011, the appellant proposed her and in 2017, there
was engagement is accepted by the second respondent. In fact,
she participated in the engagement ceremony without any
protest. However, she has denied that her marriage was
solemnised with the appellant. Taking the prosecution case as
correct, it is not possible to accept that the second respondent
maintained a physical relationship only because the appellant
had given a promise of marriage.
13) Thus, in our view, 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.
14) The appellant has accepted that the second respondent
is his legally wedded wife and the child born to the second
respondent is his child. We, therefore, propose to direct the
appellant to pay a sum of Rs. 5 lakhs to the second respondent.
This will be without prejudice to the right of the second
respondent to claim maintenance for herself and for her
daughter from the appellant in accordance with law. We
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propose to direct that the amount of Rs.10,00,000/- already
deposited by the appellant with the High Court shall be
invested appropriately till the child attains majority.
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15) Hence, the impugned judgment and order dated 26
February 2021 is hereby quashed and set aside. Crime No. 78
of 2018 registered with Sadar Police Station at Nagpur, as well
as the charge sheet filed on the basis of the same, and further
proceedings of the case stand quashed.
16) The appellant shall deposit a further sum of Rs. 5 lakhs
with the Sessions Court at Nagpur within a period of six weeks
from today. The appellant shall file a compliance affidavit
alongwith documents in this Court within a period of 7 weeks
from today.
17) The amount of Rs. 10 lakhs already deposited by the
appellant with the High Court, together with interest, if any,
accrued thereon, shall be immediately transferred to the
Sessions Court at Nagpur. The said 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 second respondent as the guardian of the
minor. The fixed deposit shall be renewed from time to time till
the child attains majority. The fixed deposit receipt shall
remain deposited with the Sessions Court till the child attains
majority. However, the Sessions Court shall direct the bank in
which the fixed deposit is made to pay quarterly interest on the
fixed deposit to the second respondent. The principal amount
shall be paid to the child after attaining majority.
Criminal Appeal No. 1368 of 2023 Page 8 of 9
18) On the 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 Court. As and when the appellant
deposits a sum of Rs. 5 lakhs, the Sessions Court will permit
the second respondent to withdraw the same. We clarify that
notwithstanding the above directions, it will always be open for
the second respondent to file appropriate proceedings against
the appellant for enforcing her as well as the child’s rights in
accordance with law.
19) The appeal is allowed on above terms.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Pankaj Mithal)
New Delhi;
January 30, 2024
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