Delhi District Court
State vs . Dinesh Sharma on 11 April, 2018
IN THE COURT OF MS. ANU GROVER BALIGA
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No. 321/2017
FIR No. 48/17
PS Delhi Cantt
U/s 376B IPC
State Vs. Dinesh Sharma
S/o Sh.Dama Sharma
R/o H.No. 42B, IInd Floor
Gali No.12, Gupta Enclave
Vikas Nagar, Uttam Nagar
New Delhi.
Date of Institution - 17.08.2017
Date of Committal - 15.09.2017
Arguments heard/Order reserved - 05.04.2018
Date of Order - 10.04.2018
Final order - Discharged
ORDER
1. The accused has been chargesheeted in the present case for having committed the offence punishable under section 376B IPC.
2. Briefly stated, the allegations made by the prosecutrix to the investigating agency in the present case are as follows: a. That she had got married to the accused on 17.07.2011 and that they have a son from the said wedlock and that though initially the SC No. 321/2017 page 1 of 8 accused loved her, gradually after marriage, he started treating her with cruelty and that in the year 2015, both of them mutually decided to obtain a divorce and that the first motion of divorce was filed by them before the court on 24.09.2015.
b. That after filing of the first motion, she and the accused decided that they should give their marriage a second chance and therefore they continued to reside together as husband and wife and that about 08 months after the filing of the first motion, the accused informed her that they have now to appear in the court to withdraw the petition filed for divorce and that the prosecutrix, therefore, accompanied the accused to the court and that after their appearance in the court, both of them continued to live together as husband and wife and the prosecutrix was very happy that she had been able to save her marriage.
c. That, however, on 15.11.2016, the accused left the matrimonial home without informing the prosecutrix and when with great difficulty she managed to trace him, he refused to come back with her.
d. That thereafter the prosecutrix was shocked when she received a legal notice on behalf of the accused alongwith which a copy of divorce decree was annexed and it is then she realised that the accused had fraudulently obtained divorce from her and despite being so divorced had continued to have sexual relations with her.
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3. Based on the aforementioned allegations, the FIR was registered against the accused under section 376B of IPC and statement of the prosecutrix was got recorded under section 164 Cr.P.C wherein she reiterated the allegations made by her in the complaint.
4. The accused was chargesheeted without arrest and the case after committal was sent to this court and on 28.10.2017, when the case was fixed for arguments on charge, Ld. Defence Counsel had contended before this court that in view of the proceedings of the Ld. Family Court and the orders passed by it dated 21.07.2016 and 03.08.2016, which clearly record that the prosecutrix had appeared before the Family Court and had voluntarily given a statement that she mutually consents to divorce her husband i.e. the accused, the allegations of the prosecutrix that she had no knowledge of the divorce decree and she was fraudulently induced by the accused to have sexual relations with him, at this stage itself, are proved to be patently false and he had therefore prayed before this court that the accused be discharged. On the said date, on the request of Ld. Addl. PP for the State that he requires the assistance of the IO and the prosecutrix for advancing his arguments on charge, the prosecutrix was also issued a notice and on 07.12.2017, the prosecutrix had appeared before this court and had stated that she be granted the assistance of a Legal Aid Counsel and that she wants to make her own arguments with respect to the framing of charge.
SC No. 321/2017 page 3 of 8
5. Pursuant to the request of the prosecutrix, the Legal Aid Authority, Patiala House Court was requested to provide a Legal Aid Counsel to her and on 08.02.2018 Ld. Counsel Sh. Ravi Mehta appointed by the Legal Aid Authority, Patiala House Court had appeared in the court but on the said date, the prosecutrix stated that she has engaged a counsel Ms. Naiem J. Heena to represent her. Legal Aid Counsel Sh. Ravi Mehta was accordingly discharged and on joint request of Ld. Counsel Ms. Heena and the Ld. Defence Counsel that some settlement talks were going on between the parties, this case was adjourned for 05.04.2018 for further arguments on charge.
6. On the said date, the prosecutrix and the accused informed this court that both of them have got married again and the original certificate of marriage was shown to this court and a copy thereof was also placed on record. The prosecutrix and the Ld. Counsel Ms. Hina had also submitted before this court on 05.04.2018 that the prosecutrix has now no objection in case the accused is discharged in the present case and that she has no grievance against him. Ld. Addl. PP for the State, however, contended that this court does not have any jurisdiction to take notice of the remarriage of the parties and that it must frame charges based on the statements tendered by the prosecutrix during investigation. His further argument was that in case the said statements are accepted to be true and correct, the accused is liable to be charged for having committed the offence punishable SC No. 321/2017 page 4 of 8 under section 376B IPC or in alternative u/s 376 IPC or in alternative 394 IPC.
7. On the other hand, Ld. Defence Counsel had reiterated that in view of the decree of divorce passed by the Family Court dated 03.08.2016 and the statements of the parties recorded by the Ld. Family Court on 21.07.2016, the prosecutrix cannot at all be allowed to contend that she was under any misconception that she still stood married to the accused.
8. Having considered the submissions made by the Ld. Addl.PP for the State and the Ld. Defence Counsel, this court is of the considered opinion that the accused is entitled to be discharged at this stage itself.
9. As narrated hereinabove, the accused has been chargesheeted for the offence punishable under section 376B IPC. It will be relevant at this stage to reproduce the provisions of the said section: ''376B - Sexual Intercourse by husband upon his wife during separation - Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.'' SC No. 321/2017 page 5 of 8
10. Clearly, the offence punishable under section 376B IPC is attracted only when an accused has sexual intercourse with his own wife, who is living separately and that too, without her consent. Now in the present case, as per the own case of the prosecutrix, she was not at all living separately during the time the accused had sexual intercourse with her. Thus, the accused cannot at all be charged for having committed the offence punishable under section 376B IPC.
11. The next contention of Ld. Addl. PP for the State is that the accused can in alternatively be charged for having committed the offence of rape for he after having obtained divorce from his wife vide a divorce decree dated 03.08.2016 continued to have sexual intercourse with her by fraudulently obtaining her consent on the misrepresentation that she still remained his wife. According to the Ld. Addl. PP for the State, such a consent obtained by a fraudulent misrepresentation is no consent in the eyes of law and therefore, the accused can be charged for having committed the offence punishable under section 376 IPC.
12. Ld. Addl. PP for the State has also brought the attention of this court to the provisions of section 394 IPC and has contended that the accused can even be charged for the said offence for he again by deceit caused the prosecutrix to believe that she was lawfully married to him, despite being aware that the Family Court had granted them a SC No. 321/2017 page 6 of 8 decree of divorce.
13. This court is unable to agree with the aforementioned contentions of Ld. Addl. PP for the State also, for the prosecutrix is an educated literate woman and she cannot be allowed to plead before this court that she was not aware as to what statement had she signed before the Ld. Family Court. A perusal of the proceedings of the Ld. Principal Judge, Family Court, Tis Hazari, shows that on 21.07.2016, the prosecutrix had appeared before the Ld. Judge, Family Court and had given a joint statement with the accused categorically stating that both the parties have decided to obtain a divorce. Further, in the judgement / order dated 03.08.2016, it has been categorically recorded by the Ld. Principal Judge, Family Court that both the parties had submitted before the court that they have been living separately since 26.07.2016 and there is no possibility of their living together. In the considered opinion of this court, in view of the said statements / petition tendered for second motion by the prosecutrix before the Ld. Principal Judge, Family Courts, she cannot be allowed to contend before this court that she was not aware that she had not been granted divorce by mutual consent and that in fact she was induced to believe that she was giving a statement for withdrawing the first motion petition. Further, even otherwise, if at all the prosecutrix wants to challenge the decree of divorce obtained by mutual consent, she should have approached the Ld. Family Courts and in the absence of her having challenged the said proceedings, this court cannot at all SC No. 321/2017 page 7 of 8 accept her statement that she was fraudulently induced by the accused to give her consent for sexual intercourse under the belief that she was still married to the accused.
14. On the contrary, the prosecutrix has categorically informed this court on 05.04.2018 that she is not wanting to challenge the proceedings before the Ld. Family Court or the decree of divorce passed by the said court and that in fact she has got married again to the accused under section 13 of Special Marriage Act, 1954.
15. In view of the discussion hereinabove, this court is of the considered opinion that the statements of the prosecutrix tendered during investigation, namely that she was fraudulently induced by the accused to have physical relations with him on the pretext that they remained married, cannot be made a basis for framing charges against the accused for having committed any of the offences punishable under section 376B, 376 IPC or 394 IPC. As such, this court hereby discharges the accused. Digitally signed by ANU ANU GROVER GROVER BALIGA BALIGA Date:
Announced in Open Court 2018.04.11
17:02:25
On 10th day of April, 2018 +0530
(Anu Grover Baliga)
Court No.7, Lock UP Building
ASJ / FTC / PHC / NDD
New Delhi /10.04.2018
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