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CR.MA/9628/2009 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9628 of 2009
=======================================================
KISHORSINH
KHUMANSINH CHAUHAN - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=======================================================
Appearance :
MR
PRADEEP PATEL for Applicant(s) : 1,
MR KP RAVAL APP for
Respondent(s) : 1,
MR SUDHAKAR B JOSHI for Respondent(s) : 2,
MR
CHAITANYA S JOSHI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 25/01/2010
ORAL
ORDER
The
applicant is the original accused. He seeks quashing of complaint at
Annexure-A. The complaint has been lodged by the respondent no.2. In
the complaint, it is alleged inter alia that the complainant and the
accused are niece and uncle respectively. It is not in dispute that
the accused is the husband of maternal aunt of the complainant, in
that sense, they are close relatives. Despite the fact that the
complainant was just over 13 years of age, she was married of to the
applicant, who was more than 20 years elder to her.
In
the complaint, she has alleged that she was not willing for the
marriage, however, the accused used to threaten her. Her father’s
service in the Police department was also in jeopardy. On account of
such constant pressure, against her wish she was compelled to marry
her own uncle. It appears that first wife of the applicant had
expired at that time. The complainant has further alleged that on the
night of 17th May, 2000, the accused had forcible
intercourse with the complainant, thereafter, she was repeatedly
raped. In the year 2002, she became pregnant, but she miscarried
later on. In March, 2003, she was dumped at her parents’ house and
the accused never cared her for thereafter. She therefore alleges
that the accused has committed rape on her between 14.05.2000 to the
year 2002.
The
applicant prays that the complaint be quashed. It is the case of the
applicant that the complaint has been lodged after nearly 10 years on
account of the disputes regarding the alimony. Learned counsel
further submitted that under Section 376 of the Indian Penal Code,
maximum punishment that can be imposed in case of rape of a wife, who
is not below 12 years of age, is two years and general period of
limitation therefore would make the present complaint beyond
limitation. He also drew my attention to the provisions contained in
Section 198(6) of the Code of Criminal
Procedure, which provides inter alia that no Court shall take
cognizance of an offence under Section 376 of the Indian
Penal Code allegedly committed by a man with his wife, who is
less than 15 years of age, if more than one year has passed from the
date of commission of offence.
Learned
A.P.P. as well as Mr.Joshi for the complainant opposed the
application. Mr.Joshi submitted that the marriage itself was not
valid. The allegations are yet to be examined. Considering the
allegations, the quashing powers should not be exercised.
It
is true that the complaint is filed after considerable lapse of time,
however, in case of allegations of rape by a victim where preperator
is sharing close domestic relation, such allegations cannot be
brushed aside only on the ground of delay. Delay of course being a
relevant consideration, but not a sole consideration when the
question of judging such allegations come up.
In
the present case, I prima-facie find that the complainant and the
accused are closely related and they are stated to be belonging to
Rajput community. There is nothing on record at this stage to suggest
that the marriage between such close relatives is permissible
according to customs of their community. If that be so, I must
proceed on the basis that the marriage itself was invalid. If the
marriage was invalid, this would not be a case of marital rape and,
therefore, all limitations and reduced sentence provided under
Section 376 of the Indian Penal Code
and Clause (6) of Section 198 of the Code
of Criminal Procedure would not apply. The case would have to
be examined as ordinarily case of alleged rape on a minor. These are
the observations made only for dealing with the quashing petition.
Whether the marriage was valid or not and whether the community to
which the complainant and the accused belong recognized such marriage
of close relations are the issues to be judged on the basis of
evidence that may be collected and produced before the Court. Entire
complexion however may change if the marriage is found to be valid.
Suffice
it to say, at this stage without investigation, complaint cannot be
quashed. The allegations must be permitted to be investigated. I am
sure that the Police will file appropriate report upon conclusion of
the investigation.
In
a decision relied on by the counsel in case of Bhupender Singh V/s
Union Territory of Chandigarh reported in 2008(8) SCC 531, the
Supreme Court finding that though there was ceremony of marriage
between the complainant and the accused, the accused was already
married refused to examine the allegations in the complaint as
marital rape.
In
view of above, this application is dismissed. Notice is discharged.
(AKIL
KURESHI,J.)
/patil
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