Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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nitinjain (Engineer)     24 October 2009

need urgent suggestion

Hello Sir,

  I need urgent suggestion in a case. Kinldy help.

Case summary: That the complainant girl  and a guy were classmates in college and had gradually become friends. They started liking each other and guy also promised(planned) to get married to the girl.

Since girl was sure that he wil marry her and she was happy to get married to the guy they had physical relationship which also lead to pregnancy and then abortion. After couple of years relationship got sour and guy started running away from marriage. She also had a violence during live-in period. Now guy denies to marry her.

She wants to file IPC 376 and 406 against him and/or  file case under Domestic violence. Can both be filed together? Which one is valid here? Can IPC 376 and 406 be filed without going to police station. She does not want to file in Police station as this case is complicated and  IPC 376 is arguable in this case and she doesnt want any arrest till the case is proved.

Thanks in advance

 



Learning

 42 Replies

adv. rajeev ( rajoo ) (practicing advocate)     24 October 2009

couple of years passed, now you cannot file a complaint u/s 376 of IPC. Suppoose case is filed it is arguable case it is good for defense, so dnt go for it, everything will be considered in the rape case.

Go for DV Act.

1 Like

K.C.Suresh (Advocate)     24 October 2009

No 376 IPC. Go after DV Act. There is provision for this kind of cheating Please go through Section 3 of the D The Protection of Women from Domestic Violance Act (in short DV Act).

1 Like

Suchitra. S (Advocate)     24 October 2009

Nitin ji, I think she can file a case against him only under DVAct.

Adv Archana Deshmukh (Practicing Advocate)     24 October 2009

S. 376 and DV won't go together.  DV is possible.

1 Like

nitinjain (Engineer)     24 October 2009

Hello Rajeev,

    You are right that many years have passed but under IPC 376 case is also valid because physical relationthip was maintained on false promises of marriage. Am I right ?

Hello All,

Thank you for the replies. But We are not satisfied with DV act as it just gives compensation but IPC 376 will be punishment. And according to me what he has done is no less that rape. Can something be done to get justice in teh form of punishment.

regards,

Nitin

 

 

nitinjain (Engineer)     24 October 2009

Hi Archana,

  You are right IPC 376 and DV wont go together. But IPC 376 case is also valid because physical relationthip was maintained on false promises of marriage. Am I right ? Since this case is complicated under IPC 376 that is why my suggestion was to go with both IPC 376 and DV act and it should be upon Magistrate to decide the nature of crimes.

Cant this be done that both case be applied together directly to the Magistrate and then decision of validity of crime can be decided by him/

regards,

Nitin

 

nitinjain (Engineer)     24 October 2009

Hello All,

  One more question just popped up to me. The girl was not staying with the guy throughout but 7 mnths in a year in absence of his parents as his parents stays most of the time in different place. Can this kind of live-in relationship covered in DV ACT 2005 since there can be argument that it is not a shared household.

Anil Agrawal (Retired)     24 October 2009

 There is no proof of anything.

1. Physical relationship is not rape.

2. Live-in relationship accepted as no crime.

3. Medical evidence can prove that  there was abortion but the boy cannot be connected with it.

4. Is there any proof that they lived together to attract DVA?

5. Think of social trauma.

There are many such cases in what is known as "liberated" society.

 

1 Like

nitinjain (Engineer)     24 October 2009

Respected Sir,

      I do not completely agree with your view but Thank you very much for replying to my post.

1. Physical relationship is not rape.

2. Live-in relationship accepted as no crime.

For 1 & 2 :      Right but even in court every case is treated uniquely beacuse every situation is different. Physical relationship is not a crime but if a girl is doing thatthinking he is the one who will be her husband anyway and then he cheats then its equivalent to rape if you look from girls perspective.

3. Medical evidence can prove that  there was abortion but the boy cannot be connected with it.

This is a question .

4. Is there any proof that they lived together to attract DVA?

How can anyone live together for so many years to attract DVA ?

5. Think of social trauma.

Thinking about the social trauma a girl is facing this is equivalent / not less than rape.

Best regards,

Nitin

Suchitra. S (Advocate)     24 October 2009

Nithin ji, I think it is difficult to argue rape after all these years since the essential elements like consent, injury and other things which prove the facts are absent. And if you say there was consent, then it wont amount to rape at all.

DVAct says 'shared household' means a household where a person aggrieved lived at any stage in a domestic relationship with the respondent and includes such a household whether owned or tenanted. So, if she can prove that they lived together for 7months in a household, she has a case.

1 Like

Adv Archana Deshmukh (Practicing Advocate)     24 October 2009

Nitin ji I agree with Suchitra ji, I think  it is difficult to argue rape after all these years. Though her consent was obtained on the pretext of marriage but it is imp. to note that the girl lived with the boy in his house, in the absence of his parentsThis would lead to an inferance that she consented for a live in relationship rather than he decepted her. And this would go against her. Remember an accused always gets benefit of doubt.

 

 

Adv Archana Deshmukh (Practicing Advocate)     24 October 2009

And though the girl was not staying with the guy throughout but 7 mnths in a year in absence of his parents, is no problem bcoz, domestic relationship covers a relationship between two persons who live or have lived together at any point of time in a shared household. They were living together under one roof for some period of time is sufficient. If this is proved, then there is no scope for any argument that it is not a shared household.

Anil Agrawal (Retired)     24 October 2009

 If you can prove what you say Mr. Nitiji, go ahead with the court case.

Feroz M Shafeeque (Police Officer)     24 October 2009

Two years passed does not make any difference. There is no period of limitation for taking congnizance of offence like rape. So the victim can register a complaint u/s 376 IPC.

 

But the nature of complaint as per your logic will not attract the offence of rape. She will have to complain that the s*xual relationship was against her will.

 

The real offence here is cheating. Draft the complaint with ingredients of rape (?) or cheating. You can complaint before the Magistrate. Any how she has to cooperate with the investigation of the Police.

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