Consent Obtained For Sex In Second Marriage Without Disclosing First Marriage Prima Facie Constitutes Rape: Bombay High Court

Justice N.J. Jamadar held that prima facie, clause four of section 375 of the Penal Code under which the offence of rape is defined seems to be attracted in the present case.

"Where there is knowledge on the part of the man about he being not the husband of the prosecutrix and the consent is on account of such mistaken belief that he is her husband and a belief on the part of the prosecutrix that she is the wife of the man."

The court was dealing with a petition that challenged the Additional Sessions Judge's order rejecting the petitioner's discharge application.

The prosecutrix is an actress by profession. She had learned about her husband's alleged bigamous acts after pictures of their wedding anniversary celebration were published in the newspaper. The first wife had confronted her soon after.

In 2013, the actress filed annulment proceedings in the Family Court and lodged an FIR against the petitioner under sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i) and 494 of IPC.

The police completed the investigation and chargesheet was filed against the petitioner.

Petitioner filed a discharge application stating the allegations against him are vague and the prosecutrix's story is contradictory with the annulment petition. The Additional Sessions Judge rejected the application citing sufficient grounds to proceed against the petitioner. Hence, the present petition.

Advocate Viresh Purwant for the petitioner argued that there is no evidence that the actress's first marriage was legally dissolved. Hence, prosecution's claim that the petitioner obtained her consent by pretending to be unmarried is negated.

Further, no case of rape has been made out as there is no evidence showing that physical relations with the petitioner were without the prosecutrix's consent. The petitioner has claimed that the marriage ceremony and the anniversary celebration were merely props and, in fact, he and the prosecutrix were never married and cohabited as husband and wife.

APP Patil emphasised the material on record and argued that there are sufficient grounds for the trial. At this stage the defence of the accused need not be taken into account.

Advocate Aishwarya Kantawala for the Respondent no. 2 (the prosecutrix) relied on Minakshi Bala v. Sudhir Kumar and Others and argued that the petition is not maintainable. The prayer for discharge cannot stand once the charges have been filed. She further submitted that the facts of the case fall under the 'fourthly' clause of Section 376.

The court considered the question of maintainability and stated, "It is trite that once a charge is framed, the scope of interference by the High Court, even in exercise of extraordinary writ jurisdiction, gets constricted". Alternate remedies exist and in this case the proper remedy would be to invoke the revisional jurisdiction. However, the court decided to deal with the merits of the petition due to the peculiarity of the facts.

The court relied on Union of India v. Prafulla Kumar Samal and Anr. which held that strong suspicion against the accused is be sufficient in order to frame a charge against the accused. The court stated that there is substantial material to show that the marriage ceremony between petitioner and respondent had taken place and the two cohabited as husband and wife.

The court noted that the prosecutrix has alleged that she only married the petitioner because he claimed to be unmarried. Since his first wife is alive, his marriage with the prosecutrix is void. The petitioner knew that he is not the husband of the prosecutrix and yet allegedly had physical relations with her.

The court relied on Bhupinder Singh v. Union of Territory of Chandigarh which had similar facts and the Apex Court stated that the 'fourthly' clause is applicable to the facts.

The court stated that the 'fourthly' clause of Section 376 will apply when - a) the man knows that he is not the husband of the prosecutrix and that the consent is given under a mistaken belief and b) the prosecutrix believes that she is lawfully married to the man. "If the aforesaid twin conditions are prima facie made out then the challenge to the prosecution on the ground that the physical relations were with the consent of the prosecutrix does not merit acceptance", the court added.

The court concluded that a prima facie case against the petitioner has been made out and dismissed the petition.

Case no: Writ Petition No. 3527 of 2021

Case Title: Siddharth Banthia v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 269 

Coram: Justice N. J. Jamadar