The Delhi High Court recently expressed concern over a disturbing pattern noticed in sexual assault cases, where an accused marries the survivor, seemingly to evade criminal charges, only to promptly abandon the survivor once the case is quashed or bail is secured. [Mohd Amaan Malik v State]
The Court was hearing a plea to quash a first information report (FIR) lodged by the Delhi Police in 2021 for rape and other offences under the Indian Penal Code (IPC) as well as Section 6 of Protection of Children from Sexual Offences Act (POCSO Act).
Justice Swarana Kanta Sharma refused to quash the FIR after noting that there were a number of cases where the accused heartlessly deserted the survivor after evading a criminal case by marrying her.
“Shockingly, numerous cases have come to light where the accused deceitfully enters into a marriage under the guise of willingness, particularly when the victim becomes pregnant as a result of the assault and subsequent DNA testing confirms the accused as the biological father, and even after solemnization of marriage and subsequent immunity from criminal prosecution, the accused heartlessly deserts the victim within a few months,” the Court said.
The Court also noted that, in this case, societal pressure may have led to the marriage of the survivor and the accused.
“Due to social pressure which exists in many societies including India as the victim had become pregnant, the mother of victim had given in to the pressure of the accused to get her daughter married to him as he was the biological father of the child,” the Court’s order stated.
The present case involved allegations that a 20-year-old (accused) had raped a 17-year-old girl, who he is stated to have married later after she became pregnant.
The two were stated to have met at tuition classes. The survivor-girl claimed that the the accused provided her with alcohol and engaged in non-consensual sexual intercourse with her at a guest house.
The prosecution further alleged that the accused resorted to blackmail and threatened to share inappropriate photographs of the survivor on social media. Using such threats, he was alleged to have forcefully engaged the victim in sexual acts multiple times.
In April 2021, the survivor discovered she was pregnant and informed her mother, who contacted the accused.
The accused, in response, is alleged to have threatened both the survivor and her mother. He also allegedly coerced them into signing marriage documents, following which he began living with the survivor in a rented place.
However, the accused is stated to have beaten and abused the survivor after the marriage and also pressurised her to get an abortion.
After an FIR was filed, the pregnancy was terminated, the Court was told.
Subsequently, the accused approached the High Court to quash the FIR.
The counsel for petitioner (accused) argued that it was a case of a love affair and that there was a consensual relationship between the parties. The parties had married to each other out of their own will, and the family of the survivor was in constant touch with the accused, the Court was further told.
It was also contended that since both the parties were Muslims, they are governed by Muslim personal law. As per Muslim law, a marriage between the two parties is valid since the girl has already attained the age of 15 years, the Court was told.
The Court, in turn, noted that the issue of whether a Muslim girl attaining 15 years of age would be governed by the provisions of the POCSO Act or not, is pending for consideration before the Supreme Court.
However, since the alleged sexual abuse was stated have started before the marriage, the High Court said that it is not going into the aspect of whether the marriage was valid.
“In any case, in the present case, the allegations of rape are not after the marriage but before the marriage between the parties, and this Court is not going into the aspect of the validity of marriage of the present petitioner with the victim,” the Court’s order stated.
The State government also opposed the petitioner’s plea, contending that the survivor had supported the allegations of sexual assault in her statement before the magistrate.
Further, the Court also noted that the survivor had also denied giving consent for sexual relations with the accused.
The Court added that even if the survivor, who was a minor at the time of the alleged offence, had said that she had given consent, the rape case against the accused cannot be quashed since “the consent of a minor was of no consequence for the purpose of sexual relationship.”
The Court proceeded to dismiss the case after opining that a prima facie case had been made out against the petitioner.
The petitioner was represented by advocates Ankit Rana, Rahul Sand and Sudhir Kumar. The State was represented by advocate Manoj Pant.
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