376 of ipc.
Vick
(Querist) 23 July 2013
This query is : Resolved
Can a 38 yrs old woman with subsisting marriage & a 10 yrs. old child from the marriage accuse , cry RAPE on the grounds of Promise to marry ?
Devajyoti Barman
(Expert) 23 July 2013
Yes, why not if there such circumstance s alleged.
Vick
(Querist) 23 July 2013
Hi Devjyoti ,
Circumstance is promise to marry .
Question is whether an already married woman with a 10 year old child and who has a subsisting marriage. Can such a woman slap a 376 on theaforesaid allegation ?
prabhakar singh
(Expert) 23 July 2013
MY ANSWER IS :NO CASE OF RAPE COULD STAND
IN SUCH A SITUATION.HER HUSBAND CAN CHARGE YOU OF ADULTERY ON PROOF YOU KNEW SHE WAS MARRIED.
Vick
(Querist) 23 July 2013
Hello Prabhakar ji ,
Thanks for the advise which further boosts my morale.
I have the proof of her marriage , i can trace her husband but i doubt if he would charge me for adultery , 497 of IPC.
I have another question : : the woman has claimed in FIR that she has taken a divorce in a panchayat in her village in Punjab.
I know that is not true as she along with her daughter lives with her In-laws.
Even in the FIR & Chargsheet the Residential address mentioned is of the In-Laws. She has no proof of such a Divorce.
But ,
even if she has a proof of a so called Divorce in a gram panchayat ,
Is that a valid proof in the courts where the 376 of IPC. is being tried.
if the gram panchayat divorce is a VALID divorce in the courts of india then the woman's claim of "Promise to marry" can be tenable.
as promise of marriage is understandable to an adult unmarried , Divorcee , Widowed woman .
&
not with a woman who has a subsisting marriage.
Pls give your expert advise.
prabhakar singh
(Expert) 23 July 2013
Who is she by cast(hope not a schedule tribe)? and so long she is governed by hindu law and not able to prove that she would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if Hindu Marriage Act had not been passed,any such kind of divorce is useless.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 July 2013
Rape it self is punishable .
And far promise of marriage it can be made even to a married woman and even to an old woman.
So try to find other flaws in the story since if she can stick to her statement of rape it is sufficient for conviction.
Vick
(Querist) 23 July 2013
Prabhakar ji ,
Thanks again.
She is not a SC/ST. & just to show that she is a divorcee , she has stated the Gram panchayat divorcee in the FIR.
Also i have an affidavit made by her claiming that she is married to me , in the affidavit she has put my picture as well as hers , put forge signature of mine and put her thumb impression on her photograph. PLS note , there is NO Thumb impression of mine.
Will such a doucment will be of any use in this false 376 case.
Also 5 days before lodging a 376 case , she approached Police and filled a NC stating that I owe her money of which there is no proof / evidence and when she claimed money I refused.
After this NC (when she didnt get the money from me) , she slapped a RApe case.
will this act of extorting money from me and upon my refusal , Filling a RAPE case out of personal venegance and wrath doesnt amount to the abuse of process of Law and will this ACT of hers will benefit me also.
prabhakar singh
(Expert) 23 July 2013
@ADVOCATE DEFENSE.
please refer to Deepak Gulati case where concurrent conviction was set aside by Apex Court holding that the prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. She was conscious of the fact that her marriage might not take place owing to various considerations, including the caste factor. Hence it could not be said that she had not given her consent for having sex with the appellant, the Bench said and directed that the appellant, who had already served three-year imprisonment, be released.
Vick
(Querist) 23 July 2013
Advocate defense ,
I am sorry to disagree with you. Nothing is Punishable untill the Act done / committed comes under the ambit of the descriptions & explanations of the IPC. Evidences / witnesses / circumstances come later.
If you have a close look at the Sec. 375 of the IPC firstly till sixthly.
A Woman with a subsiting marriage can not believe herself to be lawfully married to another Man with whome she is having consensual sex and their by satisfy "fourthly" of the aforesaid act.
&
Charge RAPE.
Vick
(Querist) 23 July 2013
Prabhakr ji ,
do you mean to say that a woman with subsisting marriage can cry rape on "promise to marry" ?
In your opinion above you said NO.?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 July 2013
In that particular case there was evidence of relations at no of times with no complaint or objection.
Bombay HC has given even more broad based judgments but underlying argument is there was consent and willingness with plethora of evidence.
So court observed the argument of offer of marriage as after thought.
prabhakar singh
(Expert) 23 July 2013
My answer "that will" should be read in context of your query post running as"She is not a SC/ST................will this ACT of hers will benefit me also."
That all this would be beneficial provided a careful cross proceeds then.
prabhakar singh
(Expert) 23 July 2013
And Vick It is always good to have counter ideas as they make otherside more prepared.
I prepare cases finding holes in my own case
then plan to cement it first.
prabhakar singh
(Expert) 23 July 2013
And in the instant case ADVOCATE DEFENSE.?
What looks more worrying to you?
Vick
(Querist) 23 July 2013
Thanks @ Prabhakar ji ,
how about the police complaint / NC that the woman did before charging me with 376.? will this be benficial ? infact this was also a ground for my bail.
Also ,
the Affidavit she got made with her picture and tumb impression. ?
Kindly guide.
prabhakar singh
(Expert) 23 July 2013
All these things look in your favor provided
you use these things to your benefit while cross examining her.
Look there can be no denial that a married lady or a widow or old can also be raped as man doing intercourse without consent of victim is called rape but if girl of 19 can be presumed to have understanding of a false promise to marry why should not a lady,may be even divorcee,of 38 years age with a ten year old child,should not be.All depends on how prosecution proceeds and how defence creates several doubts in it's story.
Vick
(Querist) 23 July 2013
Agreed Prabhakar ji ,
An intercourse against will & without consent definately amounts & constitutes the ingredient of Rape.
but , a Rape alleged when there is Consensual sex on account of "promise to marry" to a woman already having subsisting marriage , Does this make sense ?
can you refer to :
Supreme Court of India
PrashantBhartivs State Of Nct Of Delhi on 23 January, 2013
Author: J S Khehar
Bench: B.S. Chauhan, V. GopalaGowda
, , , ,
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
prabhakar singh
(Expert) 23 July 2013
Right you are and the judgement you are taking about was delivered in Deepak Gulati case which i have already referred to addressing @ADVOCATE DEFENSE.(supra)
Vick
(Querist) 23 July 2013
even the Local police didnt investigate the case or asked question OR read the law but arrested me.
the charge is being framed.
my lawyer says go for Trial , but i strongly refuse.
please guide.
prabhakar singh
(Expert) 23 July 2013
If charge sheeted then you shall have to face trial as it would not be quashed u/s 482 by High Court on grounds discussed between us.
ajay sethi
(Expert) 23 July 2013
it is better to face trial .
R.K Nanda
(Expert) 23 July 2013
state full facts to get proper reply.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 July 2013
Yes it is the only alternative since once the complaint is filed the case has to run its full length.
Even in the citation referred by him see the interesting observation by the APEX COURT.
Most importantly, as against the aforesaid allegations, no
pleadings whatsoever have been filed by the complainant.
Even during the course of hearing, the material relied upon by the accused was not
refuted.
As a matter of fact, the complainant/prosecutrix had herself
approached the High Court, with the prayer that the first information lodged
by her, be quashed.
Vick
(Querist) 23 July 2013
But Sir ,
we have the already discussed points and in 482 quash when the high court is approached accordingly and is convinced that the trail will not lead to conviction of the accused then why waste the time of the courts.
Excerpts from below judgement :
" . If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code.
But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. "...
pls refer :
SC – Citation for Discharge U-s 239 CrPC - Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766
SC – Citation for Discharge U-s 239 CrPC - Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766
Bench: M.M.Punchhi, K Thomas
PETITIONER:
SH. SATISH MEHRA
Vs.
RESPONDENT:
DELHI ADMINISTRATION & ANR.
DATE OF JUDGMENT: 31/07/1996
BENCH:
M.M.PUNCHHI, K.T. THOMAS
Vick
(Querist) 23 July 2013
Dear Advocate defense ,
true , but the question is why go all the way to the Supreme court when a possible remedy is within the inherent powers of the High courts.
kindly advise.
Vick
(Querist) 23 July 2013
hi nadeem bhai ,
what PM are you talking about ?
Vick
(Querist) 04 August 2013
experts answers awaited.
V R SHROFF
(Expert) 04 August 2013
YOU ARE
"A victim of 498A as well as 376 of IPC.
but both cases being charged by separate Woman."
ONLY REMEDY IS TO DEFEND TRIAL.
Trial Will take years, And Will she be able to prove Rape??
No legal marriage is possible w/o divorce, so no legal promise to marry!!
What your first wife have to say??
Vick
(Querist) 04 August 2013
Dear Shroff ji ,
Thanks .
You are right , I am the most unfortunate & Live example of a Man who is suffering the serious charges of felony u/s 498A & 376 of the IPC. Both these laws were unfortunately made keeping in mind The Womankind, for their protection & not being abused by some barbaric Men , but these laws give divine yet inherent powers to the Womankind who can use them as per their will , whims , fancies and surmises. , but mine is a classic & rare example of the gross misuse of these laws by some most wicked , reprehensible , unscrupulous and Venomous women who are enjoying the power of being women.
In my 498A , the plaintiff had taken 5 lacs from her previous husband and in her 2nd marriage with me asked me to shell out 20 lacs in 7 months of marriage or face jail , demanded amount being high I went to jail. A twist in this case is that the police came and arrested me from a different state and took me back to their jurisdiction in a different state which was about 2,000 kms from the place where I stayed and was arrested. Interestingly , I am shown SURRENDERED before the police in Local police station. Status of Case : the case filled in march 2008 , deficient copies of chargesheet still awaited.
In my 376 , the charge / ground of Rape is “Promise to marry” , the plaintiff had consensual sex with me and the woman is 38 years old with a subsisting marriage and a 8 yrs old kid. The twist in this case is that in this matter initially the plaintiff got a NC done against me stating I owed her money and when I refused to pay she went and registered.
After 5 days of the complaint where I did not gave in to the illegal & unlawful demand of the plaintiff & to extort money from me , She charged me with 376.The police came straight to my house and arrested me, NO Questions Asked. Status of Case : Due to some well wisher lawyers , charge framed & denied by me. Appearing every month on ever date and showing my face like a criminal.
Sudhir Kumar, Advocate
(Expert) 04 August 2013
connect earlier query on http://www.lawyersclubindia.com/forum/details.asp?mod_id=78256&offset=1#.Uf4xVKzQzmk
Vick
(Querist) 05 August 2013
Sudhir ji ,
do you think i should approach high court for quashing u/s482.
Vick
(Querist) 20 August 2013
any more expert comment / advise..
38 yrs old woman with subsisting marriage allege rape on grounds of promsie to marry.
charge framed and denied by accused.
should i go for 239 discharge or 482 quash.
prabhakar singh
(Expert) 20 August 2013
You may try your luck through 482 Cr.P.C.
Vick
(Querist) 20 August 2013
Thanks probhakar ji ,
Can i ask you why you say try your luck.? when the case is crystal clear that the woman who alleged rape on promise to marry , is already having a subsisting marriage.
sexual intercoursea which is willing / consensual on promise to marriage is certainly a ground amountin rape as per the 375 of the IPC. but i think a promise to marriage can be given to an unmarried / divorcee/ widowed woman and not a woman who has a subsisting marriage.
pls refer :
Supreme Court of India
Prashant Bharti vs State Of Nct Of Delhi on 23 January, 2013
Author: J S Khehar
Bench: B.S. Chauhan, V. Gopala Gowda
pls see some excerpts from the above judgement :
pls note , some quote fromaforesaid Sc judgement.
It is relevant to notice, that she had alleged, that she was
induced into a physical relationship by Prashant Bharti, on the assurance
that he would marry her. Obviously, an inducement for marriage is
understandable if the same is made to an unmarried person. The
judgment and decree dated 23.9.2008 reveals, that the
complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also
reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two
divorced one another by mutual consent under Section 13B of the Hindu
Marriage Act. In her supplementary statement dated 21.2.2007, the
complainant/prosecuterix accused Prashant Bhati of having had physicalPage 11
11
relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his
residence, on the basis of a false promise to marry her. It is apparent from
irrefutable evidence, that during the dates under reference and for a period
of more than one year and eight months thereafter, she had remained
married to Lalji Porwal. In such a fact situation, the assertion made by the
complainant/prosecuterix, that the appellant-accused had physical
relations with her, on the assurance that he would marry her, is per se false
and as such, unacceptable. She, more than anybody else, was clearly
aware of the fact that she had a subsisting valid marriage with Lalji Porwal.
Accordingly, there was no question of anyone being in a position to induce
her into a physical relationship under an assurance of marriage. If the
judgment and decree dated 23.9.2008 produced before us by the
complainant/prosecuterix herself is taken into consideration alongwith the
factual position depicted in the supplementary statement dated 21.2.2007,
-
it would clearly emerge, that the complainant/prosecuterix was in a
relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the
appellant-accused, while she was validly married to her previous husband
Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the
assertion made by the complainant/prosecuterix, that she was induced to a
physical relationship by Prashant Bharti, the appellant-accused, on the
basis of a promise to marry her, stands irrefutably falsified.
