Sunday, 3 February 2019

When prosecution for rape charges against husband is liable to be quashed?

SECTION 376B : Sexual intercourse by husband upon
his wife during separation
[Whoever has sexual intercourse with his own wife,
who is living separately, whether under a decree
of separation or otherwise, without her consent,
shall be punished with imprisonment of either description,
for a term which shall not be less than
two years but which may extend to seven years, and
shall also be liable to fine.
5.14 In the present case, unquestionably, there is
no decree of divorce in existence and it is also not
the case of the respondent no.2 that she had stayed
with the applicant against her will or consent when
he took her after the withdrawal of the suit. The
preceding application and her statement before the
Police Inspector, Mahila Police Station establishes
that she had accompanied the applicant willingly

after a compromise was arrived between them. She is
blissfully silent on the aspect of maintaining the
physical relationship against her will. Since there
was no separation and the respondent no.2 on her own
volition went with the applicant and stayed with him
after the settlement, it cannot be said that the
applicant had committed the offence under section
376(B) of the IPC. Having sexual intercourse during
such period of willful cohabitation does not amount
to having entering in physical relationship without
her consent. Thus, the allegations do not satisfy
the ingredients of section 375(B) of the IPC also.
5.15 The conspectus of the foregoing analysis and
observations is that none of the offences as recorded
in the impugned F.I.R. are established. It appears
that the same is filled with oblique motive and for
undue harassment and to wreck vengeance on the
applicant. Hence, the impugned F.I.R. is required to
be quashed and set aside by invoking the inherent
powers of this Court under section 482 of the Code.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 27669 of 2017

KALPESHPARI HASMUKHPARI GOSWAMI Vs STATE OF GUJARAT

CORAM: MR.JUSTICE A.S. SUPEHIA
Date : 08/01/2019



1.0 The present application has been filed by the
petitionersoriginal
accused under Section 482 of the
Code of Criminal Procedure, 1974 (“the Code” for
short) seeking quashing and setting aside the F.I.R.
being C.R.No.I238
of 2017 registered with Mahila
Police Station, Rajkot for the offences punishable

under sections 376, 406 and 420 of the Indian Penal
Code, 1860 (“the IPC” for short).
Rule. H.K.Patel, learned APP waives service of
Rule for the respondentState.
2.0 The brief facts leading to filing of the present
application are as under:2.1
It is alleged in the F.I.R. that the first
informant is residing at the address shown in the
F.I.R. with her parents and that she is working as a
Teacher in the Primary Section of Vinay Mandir Vidhya
Ankul School since about 11/
2 months, where she is
alleged to have earlier worked.
2.2 It is alleged that her marriage was performed on
02.12.2009 in the Ramapir Temple with the applicant
and thereafter she started living with the applicant
and after about a month her inlaws
started
harassment. It is alleged that as she could not
tolerate the harassment, she left her parental house.
Thereafter, the husband instituted a suit for
divorce, wherein the husband is alleged to have made
a prayer for restitution of conjugal rights. On
08.08.2013, the matter is alleged to have been
settled between the complainant and the applicant and
the complaint was taken back to the matrimonial
house. Thereafter, on 13.09.2013, the first informant
and the applicant had gone to the court for
withdrawing the case filed by the husband. It is
alleged that her husband had obtained her signature

on a stamp paper of Rs.100/and
got it notarized
before a notary by saying that the same was being
done for the purpose of withdrawal of the case,
however, later on, it was learnt by the complainant
that it was taken for the purpose of obtaining
divorce with mutual consent. It is alleged that after
about 10 months, on 14.07.2014, on the occasion of
Jaya Parvati Jaagran (night long prayer meet), she
was taken to her parental house where the husband
informed her that their divorce had taken place. It
was further informed by the husband that he wanted to
marry with one Sindhi girl and asked the complainant
to inform his father to take all articles from his
home and by saying so the applicant is alleged to
have left from there. Therefore, the first informant
on 15.07.2014 lodged a complaint with the Mahila
Police Station for settling the issue between them.
However, the Mahila Police Station served a copy of
divorce papers and a copy of marriage certificate of
husband with one another girl. Thereafter, the
complainant secured a copy of the alleged divorce
deed executed on the stamp paper of Rs.100/on
23.09.2013. It is alleged that the applicant before
the Family Court has contended that they are living
happily. Thus, it is alleged that the husband has
cheated her by obtaining signature on the stamp paper
of Rs.100/by
deceiving her and got married with one
another girl Payal
Aylani and he having consummated
the marital affair with the complainant. It is
further alleged that the husband has deceived her and
committed breach of trust. Thus, for the aforesaid

allegations, the F.I.R. came to be lodged.
3.0 Mr.Limbani, learned advocate for the applicant
has submitted that after the marriage the dispute
between the applicant and the respondent no.2 had
arisen, and therefore, the applicant instituted a
suit under Section 9 of the Hindu Marriage Act, 1955
for restitution of conjugal rights and also prayed
for a decree of divorce before the Family Court,
Rajkot.
3.1 Learned advocate Mr.Limbani has submitted that
subsequently the matter came to be amicably settled
between the parties and they started to live together
again.
3.2 Learned advocate Mr.Limbani has submitted that
the divorce in question had taken place of a writing
executed on the stamp paper of Rs.100/.
He has
submitted that the purshis was filed for withdrawal
of the suit by the applicant in view of the
settlement arrived at between the parties and below
the same, the Family Court passed an order permitting
withdrawal of the suit being H.M.P. No.257 of 2012 by
the applicant. He has also is submitted that the
respondent no.2 filed an application to the Police
Inspector, Rajkot on 15.07.2014 for settling the
matter. He has also submitted that on 22.07.2014, the
statement of the complainant was recorded by
Assistant SubInspector,
Mahila Police Station,
Rajkot by stating that the husband is having an
affair with another girl and, therefore, her

matrimonial life is not going smoothly and requested
for getting divorce from her husband. Thereafter, the
complainant has filed a private complaint before the
Chief Judicial Magistrate, Rajkot being Criminal
Inquiry Case No.502 of 2014 praying to register
the offence under sections 420, 465, 466, 467 471 and
406 of the IPC, wherein the Police SubInspector
has
filed a report in detail before the 16th Additional
Magistrate, Rajkot stating that no offence is made
out.
3.3 Learned advocate Mr.Limbani has submitted that
the complainant gave a written complainant to the
Police Inspector, Rajkot (Rural), Rajkot praying to
register offence under sections 494, 114, 465, 466,
471 and 114 of the IPC against the petitioner,
wherein the charge of section 406 and 420 of the IPC
was dropped in reference to earlier complaint dated
22.06.2015 and chargesheet
subsequently came to be
filed under sections 498A, 494, 323 and 504 of the
IPC and sections 3 and 4 of Dowry Prohibition
Act,1961. He has submitted that the complainant has
also filed an application under section 125 of the
Cr.P.C. seeking maintenance before the Family Court,
Rajkot on 07.07.2016 vide Criminal Misc. Application
No.596 of 2016 wherein he has prayed for maintenance
of Rs.20,000/per
month.
3.4 Learned advocate Mr.Limbani has submitted that
the complaint of rape is filed in 2017 after the
complainant has separated herself from the applicant
in the year 2014. Then in such a case the

ingredients of rape cannot get attracted against the
applicant. He has submitted that the complaint is
filed after a period of 3 years of separation.
3.5 Learned advocate Mr.Limbani has submitted that
the respondent herself has given a statement before
the Police on 22.07.2014 in pursuance of the
complaint initiated by her, wherein she has stated
that she was seeking divorce from her husband, which
amounts to her consensual act of staying with the
applicant voluntarily.
3.6 Learned advocate Mr.Limbani has submitted that
the complainant has filed a private compliant wherein
the report has been filed in detail by the police
examining the averments made in the complaint by the
complainant that prima facie no case is made out, and
therefore, the present FIR is filed with a view to
cause harassment to the applicant which is nothing,
but an abuse of process of law.
3.7 Learned advocate Mr.Limbani has submitted that
the complainant has filed another complaint for
offence punishable under sections 406 and 420 of the
IPC which is also investigated by the police and the
report is filed to the effect that no offence of
sections 406 and 420 is made out. However, charge
sheet is filed for offence punishable under sections
498A, 494, 324 and 504 of the IPC which clearly shows
that the aspect of rape has been examined earlier.
However again a complaint is filed which is
registered and the same is impermissible in law and

hence the impugned F.I.R. is liable to be quashed and
set aside.
3.8 Learned advocate Mr.Limbani has submitted that
the complainant has nowhere stated in the whole
complaint that the sexual act is committed against
her will or consent, which is imperative to
constitute an offence of section 375 of the IPC,
therefore also on this ground alone, the impugned
F.I.R. is liable to be quashed and set aside.
3.9 Learned advocate Mr.Limbani has submitted that
the wife at present believes that the accused is her
husband and to that effect she made an averment in
the application made under Section 125 of the Code
and on the basis of that, she has sought maintenance.
Therefore, this clearly shows that the complaint is
filed with malicious to intention to harass the
applicant, which squarely falls within the ratio laid
down in the reported judgement in the case of State
of Haryana Versus Bhajan Lal reported in AIR 1992 SC
604.
3.10 Learned advocate Mr.Limbani has submitted that
the signature of the wife – respondent no.2 on the
stamp paper on each page has been obtained with her
knowledge and consent and she being an educated lady,
who has completed her studies in M.A. Therefore, the
question of deceiving the complaint cannot arise at
all.
4.0 In response to the aforesaid submissions,

learned Advocate Mr.H.R.Prajapati, for the
complainant has submitted that the impugned F.I.R.
does not require any interference by this Court since
the respondent no.2 was in fact subjected to rape by
the applicant, since he made her believe that she was
lawfully wedded wife, and he had fraudulently created
the divorce agreement dated 23.9.2013. He has
submitted that on one hand the applicant fraudulently
obtained her signature on the divorce agreement and
on the other hand before the Family Court he
disclosed that they were living happily as husbandwife
and he is withdrawing the Family suit seeking
divorce. Mr.Prajapati has submitted that since the
applicant was aware that the respondent no.2 is not
going to give him divorce, he had fraudulently
obtained her signature on the divorce agreement.
4.1 Mr.Prajapti has further contended that when the
respondent no.2 went to the Mahila Police Sstation to
give her application dated 15.07.2014, she was
informed by the police inspector of the Mahila Police
Station that nothing can be done into the matter as
the applicant has taken divorce from her and a copy
of divorce deed dated 23.6.2013 was shown to her and
further it was also informed that he had married to
one Sindhi lady named Payal Ishwarlal, and hence she
was constrained to file the criminal complaint dated
07.11.2014 before the Chief Judicial Magistrate Court
at Rajkot against the applicant which was registered
as Criminal Inquiry case No.502/2014. Mr.Prajapati
has submitted that in order to favour the applicant
the Police SubInspector,
Mahila Police Station

submitted the false inquiry report by stating that no
offence under sections 420, 406, 465, 467 and 471 of
the IPC was made out against the applicant.
Thereafter, her subsequent complaints did not yield
any response and ultimately pursuant to the complaint
dated 23.7.2017 made to Police Commissioner, Rajkot,
a preliminary inquiry was held and the offence under
sections 376, 406 and 420 of the IPC are registered
against the applicant.
4.2 Mr.Prajapati has submitted that the case of the
respondent no.2 will fall under the provisions of
section 375 of the IPC fourth description and under
section 376(B) of the IPC. He has submitted that
prima facie the ingredients of the offence under the
aforesaid provisions are established against the
applicant, hence the present application seeking
quashing of the same may be rejected
4.3 Learned APP Mr.Patel has maintained the
arguments of learned Advocate Mr.Prajapati and has
urged that the impugned F.I.R. may not be quashed at
this stage and the investigation may be allowed to be
proceeded further.
5.0 I have heard the learned advocates for the
respective parties at length. The documents as
pointed out by them are also perused.
5.1 The applicant is shown as accused in the
impugned F.I.R. which is registered for the offences
punishable under sections 376, 406 and 420 of the

IPC. The allegations against the applicant in brief
are that he had obtained the signature of respondent
no.2 on a stamp paper of Rs.100/and
got it
notarized by saying that the same was being executed
for the purpose of withdrawal of the case, however,
later on it was learned by her that it was obtained
for the purpose of divorce with mutual consent. It is
alleged by the respondent no.2 that she came to know
the same after 10 months on 14.07.2014, and
thereafter she lodged a complaint before Mahila
Police Station, and hence during the period of 10
months, the applicant had physical relationship with
her though the applicant had the knowledge of
divorce, and he was also married to one other Sindhi
lady.
5.2 Before embarking on the submissions advance by
the learned advocates for the respective parties, it
will be apposite to refer to the documents annexed in
the writ application.
5.3 The applicant filed H.M.P. No.257 of 2012 before
the Family Court, Rajkot for restitution of conjugal
rights and in alternative for grant of divorce. The
copy of the deed of divorce dated 23.9.2013 at
Annexure ‘D’ running into ‘8’ pages bears the
signatures of the respondent no.2 along with her
photographs and identity proof of the applicant and
respondent no.2. Thereafter, the applicant gave a
withdrawal purshis on 01.10.2013 in H.M.P.
No.257/2012 by stating that they have compromised and
are happily staying together. Pursuant to the

withdrawal purshis, the Family Court, Rajkot passed
an order dated 01.10.2013 permitting the withdrawal
of the suit. Thus, the suit filed for restitution of
conjugal rights/ seeking divorce stood disposed of as
withdraw.
5.4 In the application dated 15.07.2014 made to the
PI, Mahila Sub Inspector, the respondent no.2 has
specifically stated that during pendency of the suit,
she had accompanied her husband as they had arrived
at a settlement. It is also stated by her that the
applicant had forced her to take divorce by
threatening her. It is further stated by her that she
was left by her husband on 15.07.2014 at her parental
home. Lastly, she has requested the Police Inspector
to summon the applicant and her inlaws
for entering
into compromise.
5.5 The Assistant SubInspector,
Mahila Police
Station, Rajkot City, recorded the statement of the
respondent no.2 on 22.07.2014, wherein she has
asserted that her husband had willingly dropped her
at her parental home and she does not want to stay
with her and does not want to live with him anymore
and also wants to have divorce
5.6 In Criminal Inquiry Case No.502 of 2014, the
Police SubInspector,
Mahila Police Station, Rajkot
City filed a detailed report on 18.04.2015 before
16th Additional Chief Judicial Magistrate, Rajkot
opining that no offence under sections 420, 406 ,465,
467 and 471 of the IPC were established against the

applicant
5.7 Thereafter, the respondent no.2 gave a written
complainant to the Police Inspector, Rajkot (Rural),
Rajkot praying to register the offence under sections
494, 114, 465, 466, 471 and 114 of the IPC against
the applicant, wherein the charge of section 406 and
420 of the IPC was dropped in reference to earlier
complaint dated 22.06.2015 and subsequently a charge
sheet came to be filed under sections 498A, 494, 323
and 504 of the IPC and section 3 and 4 of Dowry
Prohibition Act.
5.8 The respondent no.2 also filed an application
under section 125 of Cr.P.C. seeking maintenance
before the Family Court, Rajkot on 07.07.2016 vide
Criminal Misc. Application No.596 of 2016, wherein
she has prayed for maintenance of Rs.20,000/per
month.
5.9 It is not in dispute that the respondent no.2 is
a teacher having qualification of M.A and is also
serving as a teacher. It is difficult to comprehend
that she did not understand the contents of the deed
of divorce dated 23.09.2013 and had put her
signatures on all the pages including her identity
proof. As regards the offences under sections 406 and
420 of the IPC, which stipulates punishment for the
offences of criminal breach of trust and cheating are
concerned, the allegations as narrated in the F.I.R.
do not constitute the offence. Sections 405 and 415
of the IPC define criminal breach of trust and

cheating, the same read as under:
SECTION 405 : Criminal breach of trust
Whoever, being in any manner entrusted with property,
or with any dominion over property, dishonestly misappropriates
or converts to his own use that property,
or dishonestly uses or disposes of that property
in violation of any direction of law prescribing
the mode in which such trust is to be discharged, or
of any legal contract, express or implied, which he
has made touching the discharge of such trust, or
wilfully suffers any other person so to do, commits
"criminal breach of trust".
SECTION 415 : Cheating
Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver
any property to any person, or to consent that any
person shall retain any property, or intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not
so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in
body, mind, reputation or property, is said to
"cheat".
5.10 In the present case the contents of the F.I.R.
do not establish the offence of criminal breach of
trust. There is nothing alleged in the F.I.R. which
can satisfy the definition of criminal breach of
trust. As regards the offence of cheating is
concerned, the respondent no.2 has alleged that the
applicant had fraudulently taken her signatures on
the divorce deed. The compromise deed was prepared
during pendency of the suit. The suit was filed on
29.10.2012, and the compromise deed was entered into
on 23.09.2013, and the suit was withdrawn on
01.10.2013. The applicant has not taken any benefit

of the deed of compromise in the suit instituted by
him. On the contrary the suit was withdrawn by him by
stating that the respondent no.2 and the applicant
had arrived at a settlement and they are residing
happily. Thus, it cannot be said that the respondent
no.2 was deceived by the applicant in any manner.
Thereafter, the respondent no.2 went and stayed with
the applicant and as stated by her in her application
and statement before Police Inspector, Mahila Police
Station, Rajkot, the applicant left the respondent
no.2 at her parental home on 15.07.2014. It is
pertinent to note that pursuant to the FIR being
C.R.No.54 of 2015 registered on 22.06.2015 for the
offences under sections 406 and 420 of the IPC
against the applicant, the Investigating Officer has
filed the charge sheet dated 26.08.2015 for the
offences punishable under sections 498A,
494,324 and
504 of the IPC. In the charge sheet it is
specifically stated that no offence under sections
406 or 420 of the IPC is established against the
applicant and they were deleted. Again, the
respondent no.2 gave an application before the Police
Commissioner, Rajkot and thereafter, the impugned
F.I.R. was lodged for the offences under sections
376, 406 and 420 of the IPC. Thus, the facts suggest
that no offence under section 406 or 420 of the IPC
is established in the present case.
5.11 Assuming, the allegations made by the respondent
no.2 are taken at its face value, then also no
offences under section 375 or 376(B) of the IPC are
established against the applicant since the applicant

had withdrawn the suit which seeking prayer for
restitution of conjugal rights and in the alternative
for divorce by stating that the respondent no.2 and
the applicant have settled the matter and they are
living happily. The contention of the learned
Advocate Mr.Prajapati asserting the offence under
fourth description to section 375 of the IPC does not
merit acceptance. Relevant provision of Section 375
of the IPC is reproduced as under:
SECTION 375 : Rape
A man is said to commit "rape" if he
(a) ………….
(b) ………….
(c) …………
(d) ………..,
under the circumstances falling under any of the
following seven descriptions:
First………..
Secondly…………...
Thirdly………...
Fourthly. With her consent, when the man knows
that he is not her husband and that her consent
is given because she believes that he is another
man to whom she is or believes herself to be
lawfully married.
5.12 Examining the allegations made by the
respondent no.2 in context of the fourth description,
at no stretch of imagination it can be held that the
applicant had committed the offence of rape on the
respondent no.2 by obtaining her consent because she

believes that the applicant is another man to whom
she is or believes herself to be lawfully married.
The applicant was lawfully married to the respondent
no.2. In her application dated 15.7.2014 and the
statement dated 22.7.2014 made to the P.I Mahila
Police station, she has stated that a compromise had
arrived between her and the applicant, and he had
taken her with him, but thereafter he left her at her
parental home on 15.7.2014. Thus, in wake of such
facts, it is absolute that the ingredients of section
375 are not established in the present case.
5.13 It is also contended that the offence under
section 376(B) are also ascertained against the
applicant. Section 376(B) of the IPC reads as under:
SECTION 376B : Sexual intercourse by husband upon
his wife during separation
[Whoever has sexual intercourse with his own wife,
who is living separately, whether under a decree
of separation or otherwise, without her consent,
shall be punished with imprisonment of either description,
for a term which shall not be less than
two years but which may extend to seven years, and
shall also be liable to fine.
5.14 In the present case, unquestionably, there is
no decree of divorce in existence and it is also not
the case of the respondent no.2 that she had stayed
with the applicant against her will or consent when
he took her after the withdrawal of the suit. The
preceding application and her statement before the
Police Inspector, Mahila Police Station establishes
that she had accompanied the applicant willingly

after a compromise was arrived between them. She is
blissfully silent on the aspect of maintaining the
physical relationship against her will. Since there
was no separation and the respondent no.2 on her own
volition went with the applicant and stayed with him
after the settlement, it cannot be said that the
applicant had committed the offence under section
376(B) of the IPC. Having sexual intercourse during
such period of willful cohabitation does not amount
to having entering in physical relationship without
her consent. Thus, the allegations do not satisfy
the ingredients of section 375(B) of the IPC also.
5.15 The conspectus of the foregoing analysis and
observations is that none of the offences as recorded
in the impugned F.I.R. are established. It appears
that the same is filled with oblique motive and for
undue harassment and to wreck vengeance on the
applicant. Hence, the impugned F.I.R. is required to
be quashed and set aside by invoking the inherent
powers of this Court under section 482 of the Code.
6.0 In light of foregoing observations, the F.I.R.
being C.R.No.I238
of 2017 registered with Mahila
Police Station, Rajkot is hereby quashed and set
aside. Rule is made absolute. The present application
stands disposed of, accordingly. Direct service is
permitted.
Sd/(
A. S. SUPEHIA, J)

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