‘Marriage By Executing Marriage Agreement Before Notary Not Valid Under Hindu Law,’ Madhya Pradesh High Court

Madhya Pradesh High Court recently criticised a Sessions Court for passing the judgment in a rape case in a ‘most casual and cursory manner’, without even properly analyzing the definition of rape as given under Section 375 of IPC.

While pointing out how the trial court has erred in acquitting a police constable primarily accused of offences under Sections 375 and 201 of IPC, the High Court has also delved deep into the invalidity of a marriage agreement executed in front of a notary.

“Unfortunately, while deciding the offence punishable under Section 376 of IPC, Trial Court has not considered the definition of "rape" as defined under Section 375 of IPC and has not considered the pros & cons of executing a marriage agreement to falsely give an impression in the mind of prosecutrix that she is a lawfully married woman…”, the single judge bench of Justice Gurpal Singh Ahluwalia at Jabalpur noted while admonishing the trial court.

Acknowledging the problematic precedent that the trial court’s order might set, Justice G.S. Ahluwalia has asked the office to place the file before the Chief Justice of the High Court for further action, if any.

“Undisputedly, marriage by executing a marriage agreement is not a valid form of marriage. In Hindu law, marriage is not a contract and it has to be performed by observing Saptpadi or by any other recognized mode of marriage either under the Anand Marriage Act, Special Marriage Act, Arya Marriage Validation Act etc”, it was pointed out by the court.

Even the mere consent of the prosecutrix won’t be enough to exonerate an accused as per the ‘fourthly’ scenario contemplated in Section 375 IPC. The High Court observed that it will still be rape when the accused has falsely led the victim/prosecutrix to genuinely believe that she is lawfully wedded to the former as per the executed marriage agreement, in order to sexually manipulate her. Although the trial court considered the effect of Section 90 IPC (Consent known to be given under fear or misconception) and ruled that consent was not vitiated, the Additional Sessions Judge has utterly failed to examine the definition of rape under Section 375 IPC, the court underscored.

The court has also briefly discussed Bundel Singh Lodhi v. State of M.P (2021) & Mukesh S/o. Mr. Lakshman @ Lakshminarayan v.. The state of M.P. (2021) whereby Madhya Pradesh High Court has repeatedly held that a notary is not authorized to perform the marriage nor competent to execute the divorce deed. In Bundel Singh, the court had also equated notaries who execute marriage affidavits that are inherently invalid to ‘facilitators’ of the offence of rape on an innocent girl committed by ‘unscrupulous boys’.

The court took notice of the fact that the petitioner/accused himself has taken the defence of executing the marriage agreement though he has not produced the original of the document. On the other hand, the prosecutrix had produced a photocopy of the executed agreement before the trial court and alleged that the original was in the possession of the petitioner/accused. About acquitting the petitioner of the offence under S.201 of IPC, the court remarked as below:

“Once the execution of marriage agreement was admitted by petitioner and if prosecutrix was alleging that original document is with petitioner, then more elaborate discussion was required for acquitting petitioner from offence under Section 201 of IPC.”

Background & Observations On Resumption Of Departmental Enquiry

The Additional Sessions Court, Damoh held in April 2023 that the prosecutrix was in a voluntary live-in relationship with the accused/ petitioner and therefore, acquitted the latter of offences under Sections 376, 376(2)(N), 465, 201, 506 (Part-II) of IPC. After the acquittal, when the police department decided to resume the departmental enquiry that was stayed during the pendency of the trial, the petitioner preferred a writ petition before the High Court contending that departmental enquiry on similar charges is bad in law. When the petitioner/accused chose to challenge the prepared chargesheet, recommencement of departmental enquiry and notice to appear before the enquiry officer, the single-judge bench perused the copy of the judgment pronounced by the sessions judge and made stringent observations as discussed above.

On the aspect of restarting the departmental enquiry, the court believed that there are considerable differences between the charges framed before the trial court and in the departmental enquiry. The departmental enquiry is based on the misconduct/misbehaviour of the accused with the prosecutrix/victim which is in stark contrast with the charges levelled against him in the criminal trial. Additionally, the departmental enquiry follows a degree of proof that is akin to the ‘preponderance of possibilities’, the court observed.

Relying on several case laws, the court found it appropriate not to quash the departmental chargesheet and directed the Superintendent of Police (Damoh) to conclude the enquiry within six months from the date of pronouncement of the high court order.

Advocate Sanjeev Kumar Chansoriya appeared for the petitioner and Deputy Advocate General Swapnil Ganguly represented the state authorities.

Case Title: Lakhan Ahirwar v. State of Madhya Pradesh & Ors.

Case No: Writ Petition No.27083 of 2023

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