The Delhi High Court Wednesday refused to quash an FIR against a man accused of impregnating a minor girl, observing that an “alarming” scenario has emerged where a person accused of raping a woman marries the victim just to evade criminal charges and “heartlessly” deserts her after having got immunity from prosecution.
The high court said, “shockingly”, numerous cases have come to light where the accused “deceitfully” marries the woman, apparently voluntarily, particularly when the victim becomes pregnant as a result of the sexual assault, and deserts her once the FIR has been quashed.
The court was hearing a case where the alleged perpetrator, a Muslim man, had established sexual relationship with a minor girl from the community, and cited Muslim personal laws in an effort to dodge trial under the Protection of Children from Sexual Offences (POCSO) Act and other penal provisions of IPC.
“…..this is an alarming scenario that serves as a stark reminder. In certain instances, following a sexual assault, a disturbing pattern emerges where the accused marries the victim, seemingly to evade criminal charges, only to promptly abandon the victim once the FIR is quashed or bail is secured,” Justice Swarana Kanta Sharma said in a judgement.
The high court passed the verdict while refusing to quash an FIR against a man who was accused of raping a minor girl to whom he later got married when she became pregnant.
“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 judge said.
The high court said there are specific allegations in the FIR as well as in the girl’s statement recorded before a magistrate that the accused had taken her to a guest house at Sarai Kale Khan and sexually assaulted her.
It noted there were specific allegations that he clicked “inappropriate” photographs and videos and constantly threatened to post them on social media while sexually assaulting her resulting in pregnancy.
“It is not in dispute that due to this sexual assault in the year 2021, the victim had conceived and was pregnant at the time of registration of present FIR,” the court said.
When the girl’s mother came to know about her pregnancy, the victim disclosed that she had been sexually assaulted by the accused.
“It is therefore, prima facie clear that the sexual assault had taken place in the year 2021, whereas 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 that the victim was pregnant (with). Throughout this entire period, it was not in dispute that the victim was minor,” the court said.
The court said the Nikahnama’ (marriage deed) of April 9, 2021 also proved that the nikah had taken place on that day, which is much after the allegations of sexual assault had been made, and that the girl was still a minor at the time of her wedding.
The man argued they (the duo) are governed by the Muslim personal laws and the POCSO Act will have no applicability in this case.
The court said the issue has been contentious and remains at the “heart of controversy” in several cases decided by high courts across the country.
“Thus, there are conflicting judgments on the point as to whether a minor who is married under the Muslim Law will be governed by the provisions of the personal law or the POCSO Act and the Child Marriage Restraint Act.
“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,” it said.
Regarding the argument of the man’s counsel that the girl’s mother had attended the nikah and that it was a consensual relationship, Justice Sharma said when the alleged offence had taken place, even if that had taken place with the consent of the minor, which she denies completely and states that it happened under threat, pressure and intimidation, there is no ground made out for quashing the FIR as the consent of a minor was of no consequence for the purpose of sexual relationship.
The high court said it cannot come to the conclusion that the allegations against the man are absurd in nature or improbable or that the offence alleged could not have taken place.
According to the prosecution, the girl had met the 20-year-old man at a tuition centre and developed friendship in 2021. He then took her to a guest house and made her drink an alcoholic drink and established physical relations without her consent.
The man started blackmailing her by showing her “inappropriate” photographs and videos of the episode and continued raping her after which she become pregnant, it said.