Karnataka High Court
Manohar S/O Kallolleppa Bilgi vs The State Of Karnataka on 15 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CRL.P.NO.101681 OF 2017
Between:
Manohar S/o.Kallolleppa Bilgi,
Age 45 years, Occ: Business,
R/o.: H.No.174, Kotelingeshwar Nagar,
Near Gokul Road, Hubballi,
Dist.: Dharwad.
... Petitioner
(By Shri K.S. Patil, Advocate)
And:
1. The State of Karnataka,
Through PSI, Banavasi Police Station,
Tq.: Sirsi,
By the Spl. Public Prosecutor,
AG Office, High Court Building,
Dharwad.
2. Laxmi Rangappa Parsher,
Age alleging to be 15 years,
Occ: Household, Dasanakoppa,
Sirsi, Dist.: Uttara Kannda.
... Respondents
(By Shri Ramesh Chigari, HCGP for R1;
Respondent No.2 - served)
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This criminal petition is filed under Section 482 of
Cr.P.C. seeking to secure Original records in Spl. Case
No.9 of 2017 on the file of District and Sessions Judge,
Uttara Kannada, Karwar and to quash the entire
proceedings Spl.Case No.9 of 2017 against the
petitioner-accused No.1 for the offences punishable
under Sections 4, 6, 8, 11, 17 and 18 of the Protection of
Children from Sexual Offences Act, 2012, Sections 9 and
10 of the Prohibition of Child Marriage Act, 2006 and
Section 376 of IPC.
This petition coming on for admission, this day, the
Court made the following:
ORDER
1. The Petitioner is before this Court seeking for quashing the entire proceedings in Spl. Case No.9/2017 filed against the Petitioner, who is accused No.1 for the offences punishable under Sections 4, 6, 8, 11, 17 and 18 of the Protection of Children from Sexual Act, 2012 (for Short "the POCSO Act"), Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006 and Section 376 of IPC.
2. The Petitioner is stated to have been searching for a girl to marry when he was informed about the complainant and her family. He was further :3: informed that the complainant had studied 10th standard, and there afterwards she did not pursue studies. Believing the words of the parents of the complainant, marriage came to be performed on 11.06.2015 at Siddharooda Math, Hubballi.
3. On 27.07.2015, the complainant - respondent No.2
- wife is stated to have filed the complaint with the jurisdictional Police alleging that the Petitioner had tried to commit rape and that he had misbehaved, touching her inappropriately though she resisted it.
4. It is on this basis, the aforesaid complaint came to be registered in Banavasi P.S. Crime No.82/2015 for the offences under Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006 and Sections 4, 6, 8, 11, 17 and 18 of the POCSO Act.
5. During the course of the investigation and after recording the statement of the complainant, the offence under Section 376 was also included and :4: the matter placed before the Special Court for POCSO offences i.e., District and Sessions Judge, U.K., Karwar, wherein the same was numbered as Spl. Case No.9/2017.
6. Shri K.S. Patil, learned counsel for the Petitioner would submit that though the Petitioner has various defences insofar as the alleged offences under the provisions of the POCSO Act and the Prohibition of Child Marriage Act (PCMA) are concerned; namely he was misled by the complainant's parents and relatives into believing that the complainant was not a minor, but was a major for the purposes of marriage. He submits that the inclusion of offence under Section 376 of IPC is impermissible on account of the exception (2) to the proviso to Section 375 and contends that the said exception would apply to the present facts since admittedly the complainant is the wife of the Petitioner there cannot be a complaint of rape by the wife against :5: the Husband, the wife not being under fifteen years of age.
7. On this ground, he contends that the offence under Section 376 of IPC, rape could not have been included in the complaint. On this basis, he submits that the inclusion of the offence of rape under Section 376 of IPC may be quashed.
8. Per contra, Shri Ramesh Chigari, learned HCGP would opposes the same contending that these are all matters for trial and this Court ought not to exercise its extraordinary and inherent jurisdiction under Section 482 of Cr.P.C. for quashing the above complaint.
9. Heard Shri K.S. Patil, learned counsel for the Petitioner and Shri Ramesh Chigari, learned HCGP for respondent No.1. Perused the papers.
10. Admittedly the Petitioner is aged about 45 years and even as per the documents submitted, :6: respondent No.2, the complainant was born on 07.01.2000, the marriage having occurred on 11.06.2015, the complainant was just over 15 years of age as on the date of marriage, in any case she was less than 18 years of age as on the date of marriage or date of incident or date of complaint.
11. In Karnataka the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 was passed on 26th April, 2017, on the recommendation of the Justice Shivaraj Patil Committee declaring child marriages as void ab initio or invalid in law. .By virtue of the said amendment sub-Section (1A) has been added to Section 3 of the Prohibition of Child Marriage Act, 2006 (PCMA) declaring that every child marriage that is solemnized is void ab initio. Section 3 (1A) reads as follows:
"(1A) Notwithstanding anything contained in sub-section (1) [of Section of the PCMA] :7: every child marriage solemnized on or after the date of coming into force of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 shall be void ab initio".
12. In view of the said amendment post the amendment coming into effect on 26th April 2017, the marriage itself being void and invalid no alleged husband can claim benefit under Exception 2 to the proviso to Section 375 of the IPC. However, in this case, the marriage having taken place on 11.06.2015 at Siddharooda Math, Hubballi and the complaint having been filed on 27.07.2015, is before the amendment, hence, the amendment would not be applicable.
13. The only contention as aforesaid by Shri K.S. Patil, learned counsel for the Petitioner, which requires to be considered for this matter is the applicability of exception (2) to the provisio to Section 375 of IPC. :8: Section 375 of IPC is reproduced hereunder for easy reference:
"375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First.-- Against her will.
Secondly.-- Without her consent.
Thirdly.-- With her consent, when her consent has been obtained by :9: putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.-- With her consent, when the man knows that he is not her Husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-- With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.-- For the purposes of this Section, "vagina" shall also include labia majora.
Explanation 2.-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or : 10 : any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.-- A medical procedure or intervention shall not constitute rape.
Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
14. A perusal of the above Section would indicate that the proviso provides for a situation, where a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity and to this proviso, there are two exceptions, which are carved out namely a medical procedure under exception No.1 and sexual intercourse or sexual acts by a man with his own : 11 : wife, the wife not being under fifteen years of age under exception No.2.
15. The manner in which the proviso is worded and the way exceptions are provided, does not further the case of the Petitioner or support the case of the Petitioner in that under exception No.2 to the proviso to Section 375 of IPC, no case can be filed against a husband for the rape of his wife, if the said wife is more than 15 years of age. Such a reading of the said provision is not permissible; the exception applies in a limited situation, where a woman does not physically resist the sexual activity and thereafter initiates the proceedings. In the present case, even as per the complaint, there was resistance offered by the complainant as stated in the complaint. Therefore, this is a matter of trial, which would have to be considered during the course of the trial.
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16. The Apex court in Independent Thought v.
Union of India, (2017) 10 SCC 800 has held as under "82. In law, it is difficult to accept any one of these justifications. There is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this. Therefore unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, we cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant. It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her Husband or at his beck and call or as his property.
Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an : 13 : unconstitutional myth, then that theory deserves to be completely demolished. XXX
105. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is - this does not seem a viable option to us, given that the lives of thousands of young girls are at stake;
(ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC - in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years - this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC - this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro- child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen : 14 : years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.
17. Admittedly the complainant was less than 18 years of age at the time of her marriage with the Petitioner, when the alleged incident occurred as also when the complaint was filed, as such the above decision of the Apex court would apply, in that the age under exception 2 is to be now taken as less than 18 years, hence even if there is a relationship of Husband and Wife, if the alleged wife is less than 18 years than, the same would be covered by Exception 2 to proviso to Section 375.
18. The concept of marital rape also would have to be considered in that a husband cannot force himself on his wife against her wishes. An act of rape being one of the most heinous offences, defiling a person both mentally and physically, cannot be : 15 : countenanced on the basis of the arguments advanced; any sexual act without the consent of the other party be it a man or woman would amount to rape subject to the same being proved during the course of the trial.
19. Thus, I am of the considered opinion that all the above aspects have to be established during the course of trial and at this stage this court cannot come to a conclusion that there is no offence committed by the Petitioner as alleged or not. I'am of the considered opinion that this is not a fit case for exercising the extraordinary or inherent power vested with the Court under Section 482 of Cr.P.C. to quash the proceedings.
20. All defence/s as may be available to the Petitioner can be placed by the Petitioner before the trial Court, which shall be considered by the trial court on its merits without being influenced by any of the observation/s made in this order. The observation/s : 16 : made herein are only for the purposes of consideration of the petition under Section 482 of Cr.P.C. and nothing more.
21. Accordingly, the petition is dismissed.
22. In view of the dismissal of the petition, I.A.No.1/2018 filed for vacating stay does not survive for consideration. Accordingly, the same stands dismissed.
SD/-
JUDGE Vnp*