Disturbing Pattern Emerging Where Accused Marries Rape Victim To Evade Criminal Charges, Abandons Her Once FIR Is Quashed: Delhi High Court

The Delhi High Court has said that a disturbing pattern is emerging where in certain instances, the accused marries the rape victim to evade criminal charges and promptly abandons her once the FIR is quashed or bail is secured.

"Shockingly, numerous cases have come to light where the accused deceitfully enters into a marriage under the guise of willingness, particularly when the victim becomes pregnant as a result of the assault and subsequent DNA testing confirms the accused as the biological father, and even after solemnization of marriage and subsequent immunity from criminal prosecution, the accused heartlessly deserts the victim within a few months," said the court.

Justice Swarna Kanta Sharma made the observations while refusing to quash an FIR registered by Delhi Police in 2021 under Section 363/366A/376/505 of the Indian Penal Code, 1860 and Section 6 of Protection of Children from Sexual Offences Act. 

According to the prosecution, the 17-year-old victim had met the accused, a 20-year-old, while she was attending tuition classes. She alleged that the accused gave her alcoholic substance and made physical relations with her without her consent at a guest house. The accused is alleged to have started blackmailing her that he will post her inappropriate photographs on the social media, and under this threat, several times forcibly made physical relations with her.

When the victim found out she was pregnant in April 2021, she told her mother who called the accused. The accused allegedly threatened both the victim and her mother. It is alleged that he forced them to sign documents for marriage and thereafter, he had started residing at a rented accommodation with the victim. The abuse is alleged to have continued after the "marriage". After the FIR was registered, the pregnancy was terminated. 

Seeking quashing of the FIR, the counsel representing the accused argued that it was a case of love affair and consensual relationship between the parties, and the parties had got married to each other out of their own will, and that the family of the victim was in constant touch with the accused. It was also argued that since both the parties are Muslims, they are governed by their personal laws. As per Muslim Law, the marriage between the parties is valid as the victim has already attained the age of 15 years, it was argued.

However, the prosecution argued that the victim has supported the case in her statement recorded under Section 164 CrPC. The physical relations were made forcibly by the accused with the victim which is mentioned in the statement under Section 164 CrPC. and in the FIR, the court was told.

Justice Sharma said it is prima facie clear that the sexual assault had taken place in 2021 and "due to social pressure which exists in many societies including India as the victim had become pregnant, the mother of victim had given in to the pressure of the accused to get her daughter married to him as he was the biological father of the child."

On the argument that that parties in the present case will be governed by the Muslim personal laws and the POCSO Act will have no applicability, the court said the issue as to whether a Muslim girl attaining age of majority as per puberty after 15 years of age would be governed by the provisions of the POCSO Act or not, is pending for consideration and adjudication before the Apex Court.

"Thus, there are conflicting judgments on the point as to whether a minor who is married under the Muslim Law will be governed by the provisions of the personal law or the POCSO Act and the Child Marriage Restraint Act. In any case, in the present case, the allegations of rape are not after the marriage but before the marriage between the parties, and this Court is not going into the aspect of the validity of marriage of the present petitioner with the victim," said the bench. 

The court further said even if the sexual relationship had taken place with the consent of the minor, which she denies completely, there is no ground made out for quashing of the FIR "as the consent of a minor was of no consequence for the purpose of sexual relationship."

"In any case, in the present case, the minor victim specifically denies that sexual relationships were made with her consent and explains the circumstances in which she was first sexually assaulted and thereafter was repeatedly sexually assaulted under threat of making her inappropriate photographs public. In such circumstances, the present case is not covered either by the case of Bhajan Lal (supra) or Neeharika Infrastructure (supra) and on merits of the case, this Court cannot come to the conclusion that the allegations against the petitioner are absurd in nature or improbable or that the offence alleged could not have taken place," said the bench, while dismissing the petition.

Case Title: MOHD. AMAAN MALIK v. State of NCT Delhi

Citation: 2023 LiveLaw (Del) 560

Advocates Ankit Rana, Rahul Sand and Sudhir Kumar for petitioner.

Manoj Pant, APP for the State.

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