Gujarat High Court
Minita Virabhai Parmar vs State Of Gujarat on 19 August, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Rajendra M. Sareen
R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1014 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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MINITA VIRABHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR KUNAL S SHAH(5282) for the Appellant(s) No. 1
MR HRIDAY BUCH(2372) for the Opponent(s)/Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 19/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The original complainant-victim is aggrieved, who has approached this Court against the judgment and order of acquittal dated 10.04.2019 Page 1 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 passed by the learned Additional Sessions Judge, City Civil & Sessions Judge, Court No.21 in Sessions Case No.54 of 2015.
2. The case of the prosecution in a capsulized form is that the marriage of the appellant and the respondent no.2 took place on 09.09.2009. A certificate of registration of marriage dated 16.04.2010 under the Gujarat Registration of Marriage Act, 2006 also reflects the marriage was performed at Palanpur. The appellant was at matrimonial home and there was no dispute between the parties, however, since the dispute had arisen between the spouses, they could realize that it would not be feasible for them to continue their matrimonial relationship. Therefore, they had chosen to part their ways by way of customary divorce and that had been notarized at serial nos.46 and 47 on 2 nd March, 2013. The appellant was contacted by the respondent no.2 informing her that he realized his mistake and he was desirous to re-marry the appellant. The respondent no.2 also helped with money, clothing, shelter etc. It is averred that the appellant gave consent for physical relations. Being assured of this relationship, once again the relationship converted into that of spouses. On 25.05.2013 and on 26.05.2013 at Rajvansh Guest House, Kalupur, Ahmedabad, he lured her into physical relationship. According to the appellant, nothing had changed and his nature had remained the same, she chose to go away and because of the dispute, Page 2 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 Habeas Corpus petition was preferred, where the appellant's father also supported him. However, she had chosen to refuse to go with the husband when called by the Court in Special Criminal Application No.1709 of 2013 on 13.06.2013.
2.1. It was ordered to be inquired into under Section 156(3) of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.), and the appellant lodged an FIR for the offence punishable under Sections 376, 406 and 420 of the Indian Penal Code, 1860 (for short "the IPC). The learned Additional Chief Judicial Magistrate, Court No.5, Ahmedabad, received the charge-sheet after collection of the evidence and the same was committed to the Court of Sessions, where it was numbered as Sessions Case No.54 of 2015. Thereafter, after detailed recording of the evidences oral as well as documentary, the court acquitted the respondent no.2 and that has aggrieved the appellant-victim.
3. This Court admitted the matter on 08.05.2019 on receipt of the paper book by the office.
4. Learned advocate Mr.Kunal Shah appearing for the appellant has urged that as without entering into the merit part of it, the parties have chosen to compromise for their better future. She has foregone her contentions, which she has raised and the petition preferred being HMP Page 3 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 No.21 of 2014 before the Court of learned Principal Civil Judge, under Section 13 (1) (a) of the Hindu Marriage Act, also have been eventually settled where the parties have now preferred the petition converting the same into Section 13(B) of the Hindu Marriage Act. He further urged that there was a complaint lodged against the present appellant of allegedly forging the document of divorce entered into by way of customary way and a complaint in this respect has been lodged before the learned Magistrate on 10.04.2014 under Sections 406, 420, 463, 464, 465, 468, 469 and 471 of the IPC. She also gave a complaint before the Mahila Police Station on 30.05.2013. A complaint was also given in the year 2018 under Section 494 of the Cr.P.C.
5. Learned advocate Mr.Hriday Buch appearing for the respondent no.2-husband has vociferously argued that the entire complaint was baseless. He has submitted that the parties have entered into compromise and as submitted by the learned advocate Mr.Kunal Shah, a petition of divorce with the consent of both the sides under Section 13(B) of the Hindu Marriage Act is pending before the concerned court. According to him, as per the say of the appellant, the marriage had been annulled. And the document was sent to the Forensic Science Laboratory (FSL) for examination by the Handwriting Expert, who opined that the signature before the notary is not of the respondent no.2. Moreover, a complaint Page 4 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 was filed under Section 494 of the Cr.P.C. in the year 2018, which is also indicative of the fact that she has accepted him to be her husband and subsequent developments also are very clear and therefore, the Court has rightly held that the alleged incident of entering into physical relationship could not have been termed as an offence since the definition under Section 375 of the IPC does not permit unless the wife is under 15 years of age that such physical intimate relationship between spouses as an offence. He has further urged that there was a requirement for the respondent to approach this Court by way of Special Criminal Application No.1709 of 2013, where the Court had permitted the withdrawal of the same when she categorically stated that she is not willing to join respondent no.2. It was her decision to go away from her matrimonial home, which had resulted into issuance of the writ of Habeas Corpus where the father of the appellant had also supported the respondent no.2.
5.1. According to the learned advocate Mr.Bhuch, the decision already has been based on oral as well as documentary evidence and as can be noticed from the appreciation that such evidence does not constitute any offence and therefore, there is no requirement to indulge into the same even on merits.
6. Learned APP, Ms.Jirga Jhaveri, appearing for the State has urged Page 5 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 that the State has chosen not to file any appeal because it has accepted the decision, which is in accordance with law. She has pointed out from the evidence on record and the detailed reasoning given by the Court to urge that no indulgence is desirable in the matter.
7. Having heard both the sides and also considering the oral as well as documentary evidence and the detailed judgment and order passed by the trial court, we look it from the perspective of subsequent compromise, which has been arrived at by and between the parties. This Court notices that it is undisputed fact that the appellant and the respondent no.2, out of their own choice, have chosen to enter into the marital time and the marriage is also registered under the Gujarat Registration of Marriage Act, 2006 and the certificate of Registration of Marriage dated 16.04.2010 at Palanpur is also on record. The marriage has been solemnized on 09.09.2009. The registration certificate has been effected at a later date.
8. It appears clearly that the relationship as the spouse continued till 2013 and thereafter, the disputes had led to the appellant-wife having left the matrimonial home and that it led to filing Habeas Corpus petition being Special Criminal Application No.1709 of 2013, wherein this Court (Coram: Mr.K.S.Jhaveri and Mr.K.J.Thaker, JJ) called the corpus on 13.06.2013, wherein she has categorically replied to the Court that she Page 6 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 was not desirous to join the respondent no.2 and she had chosen to join her father instead of joining respondent no.2. Therefore, the learned counsel for the respondent no.2 had chosen to withdraw the said application. It has not appeared to be any dispute nor any other grievance raised before the Division Bench by either side. It further appears that HMP No.21 of 2014 came to be preferred before the learned Principal Civil Judge on 26.05.2014, wherein also he has alleged of a bogus document of divorce dated 02.03.2013 allegedly having been created by the appellant. He had also given a complaint to the Gadh Police Station, Palanpur, District Banaskantha of theft of his ATM Card, Marriage Certificate, Driving License and original PAN Card on 08.04.2013.
9. It is being maintained in the HMP preferred by the respondent that both the parties are advocates and the appellant has also studied upto LLM and therefore, they are well aware of the nitigrity of law being conscious of all these when it is being alleged of concocted documents to have been prepared only with a view to establish the final sovereign of the dice. This is on received a severe resistance from the present respondent no.2. He also filed complaint before the Court of learned Metropolitan Magistrate, Court no.5, for the offence under Sections 406, 420, 463, 464, 465, 468, 469 and 471 of the IPC and it was sent for an inquiry under Section 202 of the Cr.P.C.
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R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021
10. We could notice from the evidence, which has been adduced before the court concerned and particularly, the cross-examination of the appellant-prosecutrix, wherein she had alleged of the rape on both the days 25.05.2013 and 26.05.2013 after luring her for re-marriage. The entire base is of the divorce, which had taken place by way of customary way and the documents having been notarized before the notary public. She had also agreed that any complaint given by her in the Mahila Police Station, Ahmedabad on 30.05.2013, she had not uttered a single word about her allegations of 25.05.2013 and 26.05.2013. She also had not alleged that because of her husband, she had left her matrimonial home. In a complaint given by her of 21.01.2018 under Section 494 Cr.P.C., she had accepted the premise of the respondent no.2 being her husband. There was an Inquiry Case No.8 of 2014, which was admitted before the learned Metropolitan Magistrate, Court No.5, wherein the document of divorce dated 02.03.2013 came under scanner. She has also claimed compensation of Rs.10,000/- from the Government because of the complaint lodged by her. The medical examination when considered along with the evidence of Police Inspector Mrs.Kataria, PW-8, it appears that the document of divorce during the course of the investigation is not produced. The medical examination also did not reveal anything except the fact that she was a married woman and therefore, there could not be Page 8 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 any aspects of injuries etc., which could be particularly noticed in such examination.
11. The Court also cannot oblivious of the fact that in her case of alleged rape, the evidence of the prosecutrix is very important and here, it is very peculiar case, where both the spouses after deed of divorce entered into with the consent of each other. She has alleged of the rape by specific averment of luring for re-marriage and that was the premise, which had actuated to her to give her consent for physical relationship. A complaint made before the Metropolitan Magistrate of the document of divorce allegedly notarized by the notary is alleged to be bogus and having no signature of the husband. The said document had also been sent to the FSL and the notary book, which is said to have the signature of the respondent no.2, is not proved in the FSL before the Handwriting Expert and hence, all these cumulatively had led the Court to disbelieve the version of the prosecutrix and careful examination of the provisions of Section 375 of the IPC also had found that no offence is made out.
12. In absence of any deed of divorce prior to 25.05.2013 and 26.05.2013, the serious question would arise as to whether physical relationship between the spouses can be questioned under Section 375 of the IPC when the statute does not permit such act to be an offence. We have not entered into this rhyme. Noticing the subsequent offence and Page 9 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021 R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 filing of the complaint under Section 494 of the Cr.P.C. in the year 2018 by the present appellant on the premise that the respondent no.2 was her husband coupled with the fact that now both have compromised and the petition preferred by the respondent no.2 under Section 13(1)(a) of the Hindu Marriage Act is converted into a petition under Section 13(b) of the Hindu Marriage Act, where the parties have sought decree of divorce by consent given mutually for having aggrieved that their marriage has been broken down. We have no reason to show any indulgence in this appeal as could be noticed from the report of the Director of the FSL dated 11.04.2014, the disputed signature on notarized stamp paper sr. no.46/13 dated 02.03.2013 marked as D1 to D9. When compared with the standard writing and signature, it is clearly opined by the Deputy Chief State Examiner of Questioned Documents, Document Division, DFS, G.S. Gandhinagar that no definite opinion could be expressed on the red- encircled disputed signature marked D1 to D9 in comparison with the standard writing and signature. This would further indicated the stand of the respondent no.2, who has seriously questioned in challenge the action of the respondent no.2 by way of criminal complaint preferred before the Metropolitan Magistrate, Court No.5 on 10.04.2014 in Inquiry Case No.8 of 2014. The Court also cannot be oblivious with the fact that there is already a complaint filed by the appellant against the respondent no.2 and her in-laws under the Domestic Violence Act, 2005 being Criminal Misc. Page 10 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021
R/CR.A/1014/2019 JUDGMENT DATED: 19/08/2021 Application No.103 of 2014, which now the parties on account of their compromise, was settled and the appellant has assured to withdraw the same. This appears to be more precipitated on account of serious criminal disputes resulting into various litigations on both the sides. We have restrained ourselves from addressing on the merits of the matter considering the fact that both are the lawyers and they have bright future on professional level. Any personal remarks may cause serious difficulties and hence, noticing the cogent reasoning expressed by the court below and in wake of compromise, which has been entered into by and between the parties, we deem it proper to dismiss this appeal.
13. It is also expected that the parties will expedite pending of their criminal proceedings under Section 13(b) of the Hindu Marriage Act by making a request to the court concerned and any of the litigations, if are remaining shall also be withdrawn by both the sides without attempting to drag the same any further.
14. This appeal is accordingly disposed of in above terms.
Sd/-
(SONIA GOKANI, J) Sd/-
(RAJENDRA M. SAREEN,J) ABHISHEK Page 11 of 11 Downloaded on : Thu Oct 07 22:17:03 IST 2021