Above: Illustration by Anthony Lawrence
When a live-in relationship turns sour, leading to allegations of rape, should the law distinguish it from marital rape and deny legal protection to the accused?
By Venkatasubramanian
Rape cases often involve complex examination of facts and evidence to conclude whether the accused is guilty or innocent. When rape allegations are made after a few months of a live-in relationship between the accused and his victim, the process of establishing the guilt of the accused becomes more complicated. After all, the victim had given her consent for the relationship with her partner. Therefore, when the live-in relationship turns sour leading to allegations of rape, should the law distinguish it from marital rape and deny legal protection to the accused? Marital rape is not illegal at present, as the Indian Penal Code exempts it from the offence of rape, if the victim is not a minor, as interpreted by the Supreme Court in a recent case.
Although the facts of the recent case before the Delhi High Court suggest that allegations of rape against the accused followed a consensual live-in relationship between two adults, Justice Brijesh Sethi of the High Court refused to grant relief to the accused and the complainant, when both reached a compromise and married each other after a few years of the alleged incidents. In 2013, a First Information Report was registered against the accused under Sections 376 (punishment for rape) and 380 (theft in dwelling house, etc.) of the Indian Penal Code. The respondent admitted that she entered into a live-in relationship with the petitioner-accused and moved in with him at his rented accommodation in Delhi. Within five months, an altercation took place between them, and the accused left her. A complaint was filed by her, resulting in the FIR and a charge sheet against the accused.
In her complaint, she mentioned emotional, physical, mental and sexual abuse at the hands of the accused. She also alleged that he stole her valuables when leaving her. She claimed that she tried her best to reconcile with him, but to no avail. During the course of the trial, the marriage of the petitioner-accused and the respondent-complainant was solemnised as per Hindu rituals at a temple in Bengaluru. However, on account of some differences and misunderstandings the trial proceedings continued.
It was submitted before the Delhi High Court that upon the intervention of friends and well-wishers, both the parties had resolved the differences and misunderstanding between them by way of a settlement deed signed in August this year. The respondent too had given her “No Objection” affidavit for quashing of the FIR against the accused and all proceedings emanating therefrom. It was submitted before the High Court that the petitioner and the respondent had entered into a matrimonial alliance and their marriage had been duly solemnised and as such no offence under Section 376, IPC, as alleged had been committed by the petitioner. It was further argued that when the matter had been amicably settled, the continuation of proceedings arising out of the FIR would render the compromise meaningless and continuation of the proceedings would be sheer wastage of precious judicial time and public expenditure.
The prosecution submitted that the quashing of the FIR could not be allowed in view of the law laid down by the Supreme Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur v State of Gujarat, decided in 2017. In this case, the SC discussed the scope and power of the High Court under Section 482, Cr PC, to quash the criminal proceedings on the basis of settlement in a heinous or serious offence and laid down the following law: “In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power or to prevent an abuse of the process of any court.”
The Supreme Court held in this case that the decision as to whether a complaint or FIR should be quashed on the ground that the offender and victim had settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. The Supreme Court held that the High Court must have due regard for the nature and gravity of the offence, while dealing with a plea where the dispute has been settled. “Heinous and serious offences involving mental depravity, or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute,” the Court observed.
The Supreme Court reasoned that such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences, the Court explained. In another case decided in 2013, the Supreme Court had held that in respect of offences against society, it is the duty of the State to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. “Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime,” the Court observed. The High Court observed that in this case, the respondent had alleged that she was deceived by the petitioner and sexual relations were established between them on the basis of false promise of marriage and she was thus subjected to emotional, physical, mental and sexual abuse. Therefore, the High Court found that the “offence committed by the petitioner clearly falls under the category of heinous and serious one”. The High Court’s conclusion is premature, as the trial in this case is not conclusive.
The High Court further made stereotypical observations against rape, saying it “not only causes serious injury to a woman’s body, her honour and dignity”, and therefore, “this offence being not private in nature, but has serious impact on the society”, cannot be quashed even if it is settled by the offender and the victim. The High Court’s conclusions are, however, debatable. In Baldev Singh v State of Punjab, the Supreme Court bench of Justices Markandey Katju and Gyan Sudha Misra had in 2011 reduced the period of sentence imposed on three accused in a gang rape case, taking note of the fact that the parties had entered into a compromise, and the accused and the prosecutrix had subsequently got married (not to each other), and that the prosecutrix had two children. The court took note of the affidavit filed by the prosecutrix that the accused might be acquitted and that there was no misunderstanding between them. The bench, however, directed each of the accused to pay a sum of Rs 50,000 by way of enhancement of fine to the victim, as envisaged under Section 376, IPC.
While the facts of Baldev Singh and the present case before the Delhi High Court differ, it is clear that in Baldev Singh, the Supreme Court justified mitigating the gravity of the offence, following the compromise. On the other hand, the facts of the case before the Delhi High Court clearly show that they are covered under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, which covers live-in couples as well. As Section 2(f) defines domestic relationship as one in the “nature of marriage”, the accused and the respondent in this case could be considered to have voluntarily cohabited and held themselves out to the world as being akin to spouses for a reasonable period of time. Besides, the respondent in this case appears to have had a change of mind, and chosen to live with her former partner, by legally marrying him. Can the court deny her the right to marry and live with him again, by applying the rigours of the IPC?