"Consensual Relationship With Married Man, Woman Was Adult Enough": Bombay HC Quashes Case Against Man Accused Of Raping Victim For 31 Yrs

The Bombay High Court on Wednesday quashed a rape case against a 73-year-old man, who allegedly raped the victim for 31 long years.

A division bench of Justices Ajay Gadkari and Dr Neela Gokhale after perusing the First Information Report (FIR) held that there was a consensual relationship.

"The contents of the FIR clearly indicate a consensual relationship. The parties were indulging in sexual relationship for as many as 31 years. The complainant has never breathed a word about her alleged objection to the relationship. The contents of the FIR are completely silent regarding any explanation for delayed FIR. It is only in the arguments that her counsel attempts to offer an explanation, albeit lame that it is," the judgment authored by Justice Gokhale, reads.

The FIR, the bench said, itself indicates that the complainant was aware that Applicant was married and despite this knowledge, she continued to believe his assurance regarding marriage.

"She is adult enough to know that the law forbids a second marriage and there is no allegation in the complaint that, the Applicant promised to divorce his first wife and then marry her. Even otherwise, this would purely be wishful thinking on the part of the complainant that the Applicant will marry her after divorcing his existing wife. In the past 31 years, there were many opportunities for the complainant to break away and lodge a complaint against the Applicant," the judges observed.

The bench cited the incident of 1996, when the Applicant suffered a heart attack but instead of leaving him, the complainant looked after his company.

"...there was no reason for the complainant to look after the affairs of the company in the Applicant's absence and she could have easily sought assistance of the Police. The element of alleged force ceased and complainant had opportunity to file a compliant. However, she chose not to and that itself supports the defense of the Applicant that the relationship was completely consensual," the judges opined.

In the past 31 years, she has willingly and knowingly participated in the relationship with the Applicant, the judges held.

"Regarding the contention that, she gave in to the sexual abuse to keep her job cannot be believed since in the past so many years, it was possible for her to seek other employment opportunities. Thus, it is clear that, only when the Company shut down and the Applicant refused to hand over documents relating to purchase of medical shop etc. that the complainant has approached the police. This is a classic case of relationship between the parties turning sour and thereafter the complainant lodging a police complaint," the bench remarked.

Therefore, the bench concluded that the physical relationship between the complainant and the Applicant cannot be said to be against her will and without her consent.

"On the basis of the available material, no case of rape and or cheating is made out," the bench held, while quashing the FIR lodged in September 2017.

Background:

According to the complainant, she had joined the Applicant's company when she passed her Class 12 in 1987. It was stated that sometime in July 1987, the Applicant called the complainant to the office, on a holiday, on the pretext of making some audit bills. Since it was a holiday, no one else was there in the office and it is then that the Applicant raped her against her will. Since then the sexual relationship continued and in 1993, the Applicant tied a Mangalsutra in her neck and assured her that she is his second wife.

In 1996, when the Applicant suffered a heart attack, the complainant looked after his company. The sexual relationship continued even after that. However, in September 2017, when the complainant went on leave to take care of her mother she found the company shut upon returning. She then informed her father about her relationship. 

The father took the complainant to the applicant's house and confronted him. The applicant, then assured the woman and his father that he would be marrying her soon. Subsequently, when the complainant demanded some documents related to the company and the purchase of some medical shop along with her gold Mangalsutra, the applicant refused to hand over anything to her. She accordingly lodged a case of rape and cheating against the applicant.

However, the court held that the relationship which spanned over 31 years was a consensual one and cannot be termed to be rape.

With these observations, the bench quashed the rape case.

Appearance:

Advocates Hitesh G. Ramchandani and GJ Ramchandani appeared for the Petitioner.

Assistant Public Prosecutor AS Shalgaonkar represented the State.

Advocates Ninand Muzumdar, Ameya Khot and Kenny V Thakkar appeared for the Complainant.

Case Details: Lalchand Bhojwani vs State of Maharashtra (Criminal Application 1167 of 2018).

Click Here To Read/Download Judgment.