No Right To Exploit Fiancee Sexually Against Her Consent During The Period Intervening Engagement And Marriage

In a very significant observation with far reaching consequences, the Punjab and Haryana High Court in an extremely laudable, learned, landmark and latest judgment titled Sagar Kapoor Vs State of Haryana in CRM-M-35393-2022 (O&M) that was reserved on August 31, 2022 and then finally pronounced on September 5, 2022 has observed unequivocally that merely because the parties are engaged and are meeting each other, it doesn’t give any right or liberty to the proposed bridegroom to sexually exploit the fiancée without her consent.

It thus merits no reiteration that those bridegrooms who dare to sexually exploit the fiancée without her consent have to pay the price for their terribly reprehensible act! Most commendably, we see that the Single Judge Bench of Hon’ble Mr. Justice Vivek Puri has minced just no words to unambiguously observe that:
The petitioner cannot get any leverage to physically exploit the fiancée against the consent during the period intervening the engagement and the marriage.” The Court we thus see has been very firm in denying anticipatory bail to a man who had been implicated in a rape case by his fiancée!

At the very outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr. Justice Vivek Puri has set the ball rolling by first and foremost putting forth in para 1 that:
The petitioner is seeking anticipatory bail in the case bearing FIR No. 0552, dated 23.07.2022, under Section 376 of the Indian Penal Code (for short IPC), registered at Police Station Civil Lines Karnal, District Karnal.”

To put things in perspective, the Bench then envisages in the next para of this learned judgment that:
Briefly, the FIR has been registered on the allegations that roka ceremony of the petitioner was held on 30.01.2022 with the petitioner and the date of marriage was fixed as 06.12.2022 with the consent of the family. On 21.02.2022, the petitioner met the prosecutrix and asked her to form physical relationship, but she refused to do so. The petitioner again met her on 27.05.2022 in Delhi and again insisted for physical relationship. On 18.06.2022, the prosecutrix was taken by the petitioner to Leela Grand Hotel, Karnal, on the pretext that he was tired and wants to take rest. The prosecutrix was taken to a room and petitioner asked her for physical relations, but she refused to do so. Despite that the petitioner entered into physical relationship with the prosecutrix and also made her videos. Subsequently, on 17.07.2022, the mother of the petitioner informed the mother-in-law of the sister of the prosecutrix that the petitioner is quarrelling for the last two months at home as he does not want to solemnize marriage with the prosecutrix.”

On the one hand, while dwelling on the petitioner’s version, the Bench then points out in the next para of this judgment that:
Learned senior counsel for the petitioner contends that there is no dispute with regard to the fact that the petitioner was engaged with the prosecutrix and the date of marriage was fixed as 06.12.2022. Furthermore, the necessary bookings for the marriage ceremonies were done by the petitioner and his family. The family of the petitioner came to know that the prosecutrix was having love affairs with other male friends and accordingly, marriage was called off on 02.07.2022.

Subsequent to the engagement, the petitioner and the prosecutrix had voluntarily visited the hotel and their names have been reflected as guest in the records of the hotel. The physical relations were developed with the consent of the prosecutrix. Even subsequent to the occurrence, the whatsapp messages were exchanged which indicate that it was a consensual relationship. By placing reliance upon a decision of Hon’ble Supreme Court rendered in Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108, it has been argued that the relationship was consensual in nature, but the marriage could not fructify and consequently, no case under Section 376 IPC is made out.”

On the other hand, the Bench then discloses in the next para of this notable judgment that:
Learned State counsel and the learned counsel for the complainant have opposed the bail application on the score that serious allegations of commission of rape have been leveled against the petitioner despite the refusal on the part of the prosecutrix. The petitioner had also prepared the video while indulging in physical relationship. Subsequent chats between the petitioner and the brother-in-law of the prosecutrix are indicative of the fact that the petitioner is not disputing the fact of entering into physical relationship and preparing the video. Furthermore, the audio recordings have also been presented by the complainant party to the investigating agency and the voice sample of the petitioner is required for proper investigation of the case. Even in her statement under Section 164 of the Code of Criminal Procedure, the prosecutrix has reiterated her allegations.”

Most significantly, the Bench then minces no words in the next para to lay down what constitutes the cornerstone of this robust judgment wherein it is held explicitly, elegantly and effectively that:
There is no dispute between the parties to the effect that the petitioner was engaged with the prosecutrix and the date of marriage was fixed for 06.12.2022. The petitioner has sought to put forth a case to the effect that the marriage was called off on 02.07.2022 as his family had discovered that the prosecutrix was having love affair with other male friends. As per the version of the prosecution, on 18.06.2022, the petitioner took the prosecutrix to a hotel, where physical relations were developed despite her refusal. Even at earlier instance also, the petitioner had been insisting for such relationship, but the prosecutrix had been refusing to do so. It is a categoric case of the prosecution that there was refusal on the part of the prosecutrix and despite that the petitioner entered into sexual relationship. The whatsapp messages sought to be relied upon by the petitioner are subsequent to the occurrence. There is lack of material to indicate that as on 18.06.2022, the prosecutrix had consented for any such relationship. The whatsapp chat at a subsequent stage may have been exchanged on the score that the matrimonial alliance was existing at that point of time. However, it does not indicate that the act was committed by the petitioner with the consent of the prosecutrix. It is not borne out that at any point of time, the prosecutrix has voluntarily consented for the sexual intercourse and it is a case of consensual relationship. In the event, the parties were engaged and were meeting each other, it cannot give any right or liberty to the proposed bridegroom to sexually exploit the fiancée without her consent. The petitioner cannot get any leverage to physically exploit the fiancée against the consent during the period intervening the engagement and the marriage. The version in the FIR is also indicative of the fact that as per information derived from the mother of the petitioner, there was reluctance on the part of the petitioner to solemnize marriage even at the point of time when physical relationship was developed. There is lack of material to indicate that there was genuine intention on the part of the petitioner to solemnize marriage and the prosecutrix was the consenting party at the relevant time. In the peculiar circumstances of the case, it is not made out that it was a case of consensual relationship.”

Most forthrightly, the Bench then hastens to add in the next para of this remarkable judgment that:
The ratio of the decision rendered in Maheshwar Tigga (supra) is distinguishable from the facts of the case. In the aforesaid case, the Hon’ble Supreme Court was dealing with an appeal against conviction. Though the parties were engaged, but the marriage could not be fructify because they were from difference religious beliefs. The engagement ceremony was held in the solemn belief that the societal obstacles would be overcome, but unfortunately the differences arose as to whether the marriage was to be solemnized in the church or in a temple and ultimately failed. It was held that the prosecutrix was conscious of the obstacles and she continued to establish physical relationship. In the said case, there was initial consent on the part of the prosecutrix to enter into physical relationship, but the marriage could not fructify on account of different religious beliefs. Besides there was delay of about four years in lodging of the FIR and certain circumstances were not put to the accused in his statement under Section 313 Cr.P.C. and were excluded from consideration. However, in the instant case, there is a categoric statement of the prosecutrix that the petitioner entered into physical relationship with her, despite her reluctance, refusal and denial. The passive submission on the part of the prosecutrix to the act, cannot be construed as a circumstance to hold that it was a case of consensual relationship.”

Finally, the Bench then concludes by directing in the last para of this noteworthy judgment that:
In these set of circumstances and keeping in view the gravity of the allegations, no extra ordinary circumstances are made out to grant the pre-arrest bail to the petitioner. Present petition is, accordingly, dismissed.”

In essence, the Punjab and Haryana High Court has thus taken a very forthright, frank and firm stand that the bridegroom has no right to exploit fiancée sexually against her consent during the period intervening engagement and marriage. Those who dare to exploit fiancée as we see in this latest case will have to pay dearly for it and cool their heels in jail for which no one but they themselves would be responsible for it! At the cost of repetition, it must be said forthrightly that the Single Judge Bench of Hon’ble Mr Justice Vivek Puri has thus very rightly refused to grant bail to the petitioner for the reasons as discussed hereinabove. No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.