Mumbai High court gives anticipatory bail in IPC 376 ‘technical’ rape allegation

http://timesofindia.indiatimes.com/india/Pre-marital-sex-not-shocking-every-breach-of-promise-to-marry-is-not-rape-Bombay-HC/articleshow/45663907.cms

The important parts of the judgment which relate to merits of the case are below:

Seema, who claimed she was pregnant with Rahul’s child, said despite promising to marry her, he had married another girl. Rahul claimed the relationship was consensual, and they could not marry as they belonged to different religions. Rahul and Seema, both lawyers, knew each other since 1999 and had a physical relationship since 2006. Seema claimed he had promised to marry her. In 2009, when he said he could not, she had tried to commit suicide. They continued physical relations even after that.

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The HC gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape — an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl.

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In 2011, Rahul had filed an affidavit with police that Seema was forcing him to get married and was threatening to commit suicide. They had sexual relations even after this. Seema lodged a complaint of cheating and rape in 2013. “The complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied,” the judge said, while granting anticipatory bail to Rahul.

Merits of the case as I see it:

1. They were from different religions.  Possibility of marriage becomes much lesser.

2. Woman was not an uneducated, poor girl.

3. The man filed affidavit with police and she continued physical relations even after that.

The part below of the judgment is something which should be totally ignored by anyone who thinks that there will be prompt investigation or justice once an IPC 376 is filed on him.  This is of the nature of commentary given in judgments, which have no relation to the merits on which the case was decided.

“Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive,” said Justice Mridula Bhatkar, adding, “Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society.”

For some reason, it is part of news like above which tends to get much highlighted and shared. This inspite of the fact that even in this case the HC clearly said that each case will get decided on it’s own merit, and no straightjacket formula can be adopted.  So the above paragraph of the judgment is just a commentary, not a rule to be followed.

“Today the law acknowledges live-in relationship(s). The law also acknowledges a woman’s right to have sex, a woman’s right to be a mother or a woman’s right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted,” the judge said.