A First Information Report (the impugned FIR) was registered against the appellant at the instance of the second respondent for the offences punishable under Sections 376(2), 377, 504, 506 of the Indian Penal Code (for short, ‘IPC’) and various clauses of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989.
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Even after the engagement, the appellant continued to maintain a physical relationship with the second respondent. The case of the appellant is that there was a Nikah between him and the second respondent on 20 January 2017 at Junglee Peer Baba Dargah.
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As held by this Court in the case of Anurag Soni, if (2019) 13 SCC 1 Criminal Appeal No 1368 of 2023 the consent of the victim is based on misconception, such consent is immaterial as it is not a voluntary consent. In fact, according to the version of the second respondent, their physical relationship commenced in 2012 and continued till 2017. It is not the case of the second respondent that from February 2013 to December 2017, the appellant forced the second respondent to maintain the physical relationship.
Sarita Rai Vidyarthi, who stated that the appellant and second respondent used to come to her from November 2017 for advice and treatment as the second respondent was pregnant. If this material, which is a part of the investigation papers, is perused carefully, it is obvious that the physical relationship between the appellant and the second respondent was consensual, at least from 2013 to 2017.
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Thus, in our view, the continuation of the prosecution in the present case will be a gross abuse of the process of law. Therefore, no purpose will be served by continuing the prosecution. The appellant has accepted that the second respondent is his legally wedded wife and the child born to the second respondent is his child. We, therefore, propose to direct the appellant to pay a sum of Rs. 5 lakhs to the second respondent. This will be without prejudice to the right of the second respondent to claim maintenance for herself and for her daughter from the appellant in accordance with law. We propose to direct that the amount of Rs.10,00,000/- already deposited by the appellant with the High Court shall be invested appropriately till the child attains majority.
Hence, the impugned judgment and order dated 26th February 2021 is hereby quashed and set aside. Crime No. 78 of 2018 registered with Sadar Police Station at Nagpur, as well as the charge sheet filed on the basis of the same, and further proceedings of the case stand quashed. The appellant shall deposit a further sum of Rs. 5 lakhs with the Sessions Court at Nagpur within a period of six weeks from today. The appellant shall file a compliance affidavit alongwith documents in this Court within a period of 7 weeks from today.
The amount of Rs. 10 lakhs already deposited by the appellant with the High Court, together with interest, if any, accrued thereon, shall be immediately transferred to the Sessions Court at Nagpur. The said Court shall invest the said amount in a fixed deposit with any nationalized bank by incorporating the name of the minor child of the appellant as the depositor and the second respondent as the guardian of the minor. The fixed deposit shall be renewed from time to time till the child attains majority. The fixed deposit receipt shall remain deposited with the Sessions Court till the child attains majority. However, the Sessions Court shall direct the bank in which the fixed deposit is made to pay quarterly interest on the fixed deposit to the second respondent. The principal amount shall be paid to the child after attaining majority.
On the failure of the appellant to comply with the direction to deposit a sum of Rs. 5 lakhs, the Registry shall list the appeal before the Court. As and when the appellant deposits a sum of Rs. 5 lakhs, the Sessions Court will permit the second respondent to withdraw the same. We clarify that notwithstanding the above directions, it will always be open for the second respondent to file appropriate proceedings against the appellant for enforcing her as well as the child’s rights in accordance with law.
The appeal is allowed on above terms.
Case Title: SHEIKH ARIF Vs. THE STATE OF MAHARASHTRA (2024 INSC 70)
Case Number: Crl.A. No.-001368-001368 / 2023
