Mohammed Rasal v. State of Kerala and Victim X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **Crl.MC.No.5262 OF 2019(G)** **CRIME NO.104/2018 OF Kodenchery Police Station , Kozhikode** ## **PETITIONER/S:** **MOHAMMED RASAL, AGED 32 YEARS S/O.RASHEED, PUTHUKUDI HOUSE, MADAVOOR MUKKU, POST MADAVOOR, NARIKKUNI, KOZHIKODE DISTRICT.** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 VICTIM, X** **R2 BY ADV. O.V.BINDU** ## **OTHER PRESENT:** ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **(C.R)** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 5262 of 2019 ================== Dated this the 3[rd] day of September, 2019 ## **O R D E R** The prayers in the above Criminal Miscellaneous Case filed under Sec. 482 of the Code of Criminal Procedure are as follows: _“Call for the records pertaining to Annexure A-1 (Crime 104/2018 of the Kodenchery Police Station lodged before the Additional Sessions Court (for the trial of cases relating to atrocities and sexual violence towards women and children)-Kozhikode district and quash all further proceedings pursuant thereto.”_ 2. Heard Sri.K.A.Salil Narayanan, learned counsel appearing for the petitioner, Sri.T.R.Renjith, learned Prosecutor appearing for the 1[st] respondent State of Kerala and Smt.O.V.Bindu, learned counsel appearing for R-2 lady defacto complainant. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx. A-1 Crime No. 104/2018 of Kodenchery Police Station, Kozhikode, for offences under Sec. 376 of the I.P.C. and Sec.5(j)(ii) and Sec. 6 of the POCSO Act, 2012 on the basis of the intimation said to have been given by the Child Line authorities on 13.11.2017 and the crime has been so registered on 13.11.2017 in respect of the alleged incidents taken place for the period between 9.4.2017 and 28.3.2018. 4. The prosecution case is broadly to the effect that the Crl.M.C.5262/2019 - : 3 :- petitioner, then aged 25 years, had married the 2[nd] respondent lady defacto complainant on 9.4.2017 and that as her date of birth is 28.3.2000, she had not completed the majority age of 18 years as on the abovesaid date of marriage and thereafter, the petitioner had sexual intercourse with the 2[nd] respondent and she had begotten a child on 7.4.2018. It appears that the date of birth of the 2[nd] respondent is 28.3.2000 and she had completed the majority age of 18 years only on 28.3.2018. Further, it appears that when the 2[nd] respondent was hospitalized in connection with her pregnancy, intimation was given by the hospital authorities to the Child Line authorities, Kozhikode, on the basis of which, the Child Line authorities Kozhikode, has sent intimation dated 13.11.2017 to the Chairman, Child Welfare Committee informing that at that time, the 2[nd] respondent was 3 months pregnant and that she was then obviously a minor, etc. It is on the basis of Anx. A-1/6 letter dated 13.11.2017 sent by the Child Line authorities, Kozhikode, that the instant crime has been registered much later on 13.6.2018 for the abovesaid incidents. 5. The 2[nd] respondent has filed Anx. A-2 affidavit dated 17.7.2019 as well as an additional affidavit dated 31.8.2019 in this case. In the said sworn affidavit, the 2[nd] respondent has stated that Crl.M.C.5262/2019 - : 4 :- her date of birth is 28.3.2000 and that her marriage with the petitioner herein was solemnized on 9.4.2017, at a time when she was a minor and that she has completed the majority age of 18 years on 28.3.2018 and that she had given birth a baby girl in her wedlock with the petitioner on 7.4.2018. Further that after attaining her majority age of 18 years, she has fully acted upon the marital relationship and her marital relationship is confirmed and that she is now leading a happy married life with her husband (the petitioner herein) and baby girl and she is having support of the families of both the spouses, etc. Further that she is not in any manner interested for prosecuting this case, as it would be detrimental to her own family life, as the petitioner accused is none other than her husband, who is the father of her child and further that she had entered into sexual relationship with the petitioner only after her marriage was solemnized. 6. It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C. cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {see _**Shimbhu & Anr. v. State of Haryana**_ [2014 (13) SCC 318], _**Parbatbhai Aahir v. State of Gujarat**_ [ _(_ 2017) 9 SCC 641], Crl.M.C.5262/2019 - : 5 :- _**Anita Maria Dias v. State of Maharashtra**_ [(2018) 3 SCC 290], _**Sebastian @ Solly v. State of Kerala**_ [2015 (1) KLJ 384, etc.}. However, this Court has held in various decisions including the decisions as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr**_ . [2017 KHC 344 = 2018 (1) KLD 558), _**Denu P.Thampi v. Ms.X**_ , [2019(3) KHC 199], etc. that the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto complainant/victim, to ensure her better future life. It is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings on the ground of settlement between the parties in such cases where the accused is alleged to have committed penetrative sexual assault/rape on a victim/minor victim on the assurance of the marriage, etc. and where the marriage between the accused and the victim is subsequently solemnized. That mainly applies in the case where the marriage is conducted after the lady victim has also attained the age of 18 years. But it has to be noted that in the present case, the allegation is that the families on both sides had arranged the marriage between the petitioner/accused, then aged Crl.M.C.5262/2019 - : 6 :- 25 years and the 2[nd] respondent lady defacto complainant, then aged 17 years, they had entered into sexual relationship only after the solemnization of the marriage, and she has given birth to a child after she has attained the majority age of 18 years. 7. Whereas the cases dealt with by this Court in the decisions as in _**Freddy's**_ case supra and _**Denu P.Thampi**_ 's case supra, are situations where the accused would have promised the victim that he would marry her and then would have sexual relationship and thereafter, he is charged with the offence of rape and subsequently the parties get married and this Court, exercising its discretion under the inherent powers as per Sec. 482 of the Cr.P.C. quashed the criminal proceedings as otherwise it would detrimentally affect the marital life of the victim herself. This Court is of the considered view that the facts of this case would certainly stand on a much better pedestal than the facts covered by the cases as in _**Freddy's**_ case supra and _**Denu P.Thampi**_ 's case supra. In the instant case, of course, the 2[nd] respondent was a minor at the time of solemnization of the marriage. But after the solemnization of the marriage, the parties entered into sexual relationship and the 2[nd] respondent has completed the majority age of 18 years and thereafter, she has given birth a child and she has fully affirmed and confirmed the factum of Crl.M.C.5262/2019 - : 7 :- her marriage, which was solemnized at the time when she was a minor and she is leading a peaceful and happy married life. Therefore, discretion conferred on this court as per Sec. 482 of the Cr.P.C. could be eminently invoked in cases of this nature, as otherwise it would be unjust and unfair to initiate criminal proceedings in a case like this, where obviously, the victim has subsequently confirmed and affirmed the marriage and the marriage had taken place before the sexual relationship. 8. There is yet another aspect in this matter. Though the definition of rape as per Sec.376 of the I.P.C. has been broadened as per the amendments made out w.e.f. 3.2.2013 and the age of consent now stands enhanced from 16 years to 18 years as per clause sixthly of Sec. 375, even till date no amendment has been made to Exception No.2 of Sec. 375 of the I.P.C., whereby it is mandated that sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. However, the Apex Court in the celebrated judgment dated 11.10.2017, in the case in _**Independent Thought v. Union of India & Anr**_ [(2017) 10 SCC 800= AIR 2017 SC 4904] has held that in view of the provisions contained in the POCSO Act and other provisions in the Sec.375 of the I.P.C. the age limit of 15 years envisaged in Sec. 375 shall stand enhanced to 18 years, and the Crl.M.C.5262/2019 - : 8 :- alleged offence acts committed before 11.10.2017 (date of the judgment in _**Independent Thought's**_ case supra), will not be detrimentally affected by the said judgment. In other words, if the marital rape is committed by husband on the wife where the age of the wife is 15 years and the said alleged sexual acts are prior to 11.10.2017 (date of the judgment in _**Independent Thought**_ case supra), then the said acts will continue to get the protection as per Exception No.2 of Sec. 375 of the I.P.C.. In the instant case, the marriage between the parties has taken place on 9.4.2017, which is well before the date of rendering of the judgment (11.10.2017) by the Apex Court in _**Independent Thought**_ case supra. Hence the benefit of Exception No.2 of Sec. 375 of the I.P.C. could be availed by the petitioner accused in the instant case inasmuch as the alleged sexual acts have happened after the solemnization of the marriage on 9.4.2017. So in cases where alleged marital rapes have happened in respect of the marriage solemnized prior to 11.10.2017 with a girl who has completed the age of 15 will continue to get the benefit of Exception No.2. In the instant case, the 2[nd] respondent had obviously completed the age of 15 years as on the date of solemnization of the marriage on 9.4.2017. 9. Accordingly, in exercise of the powers conferred under Crl.M.C.5262/2019 - : 9 :- Sec.482 of the Cr.P.C., it is ordered in the interest of justice that all further proceedings pursuant to the impugned Anx. A-1 Crime No. 104/2018 of Kodenchery Police Station, initiated against the petitioner accused and all further proceedings arising therefrom pending against the petitioner accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.5262/2019 - : 10 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME 104/2018 OF THE KODENCHERY POLICE STATION, KOZHIKODE DISTRICT. ANNEXURE A2 AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT.**