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Avishek Asit Mitra vs. The State of Maharashtra - (High Court of Bombay) (20 Sep 2021)

“Astrological incompatibility” cannot be used as a ground to avoid Rape charges

MANU/MH/2683/2021

Criminal

The applicant has filed present revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C.) against dismissal of his Application filed under Section 227 of Cr.PC seeking discharge in the complaint filed under Sections 376 and 420 of the Indian Penal Code, 1860 (IPC).

As per the Complainant, she and the applicant know each other since 2012. The applicant assured that he would marry the Complainant and on that pretext, he exploited her emotionally, mentally and physically. They established sexual relationship and the Complainant conceived. At that time, Applicant promised to marry Complainant after two years and convinced her to abort fetus. However, thereafter, the Applicant refused to marry the Complainant. Being aggrieved, the Complainant has filed written complaint on 28th December, 2012. Applicant was summoned in the police station, who in the presence of his parents, unconditionally, agreed to marry Complainant The complainant was convinced and so, withdrew the complaint, However, within 15 days, applicant turned the table round and informed the Counseller about his disinclination to marry the complainant. In the fact situation, the complainant renewed her complaint, whereupon a case under Sections 376 and 420 of IPC came to be registered against the applicant and others. The learned Sessions Judge declined to discharge the applicant whereupon present Revision has been preferred.

The Counsel for Applicant contended that the material on record does not suggest that there was absolutely no intent on the part of the applicant, not to marry the Complainant nor can it be even suggested that the promise to marry was false. The Applicant’s father/family were willing to perform the marriage of their son with the complainant subject to religious prohibitions and since, horoscopes of the applicant and the complainant did not match and the case being of astrological incompatibility, relations could not be furthered. Thus, it is a case of breach of promise and not false promise of marriage.

The Court observed that there is sufficient material on records to suggest that since inception, applicant had no intention of upholding his promise to marry the complainant. Prima-facie, Applicant convinced over the Complainant to withdraw her first complaint by promising that he would marry her. However, his intentions were otherwise. Had intentions were bonafide and true, the applicant would not have addressed a letter to Counseller and resiled from his promise to marry the complainant. Notably, this letter was addressed to Counseller within twelve days from the date on which complainant withdrew her first complaint. It is apparent that the applicant in the guise of astrological incompatibility of the horoscopes has avoided the promise. Thus, it is case of false promise to marry which apparently vitiates the complainant’s consent.

It is settled law that while considering the question of framing of the charges under Section 227 of Cr.PC, the Court has power to sift and weigh the evidence for the limited purpose for finding out whether or not prima-facie case against the accused has been made out. The facts emerging from the material/documents on record taken at their face value, disclose the existence of all ingredients constituting alleged offence under Section 376 of the IPC. For these reasons application deserves no consideration. It is rejected.

Tags : ASTROLOGICAL INCOMPATIBILITY   RAPE  

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