The High Court of Jammu and Kashmir and Ladakh recently questioned the propriety of allowing a woman to claim interim maintenance from her partner whom she got convicted for rape on the promise of marriage.
Justice Vinod Chatterji Koul said that it would be difficult for the Court to hold in favour of the woman in such a case.
The Court was hearing a case concerning a woman who filed a rape case against her partner, with whom she had a child.
She argued that even though they were not married, they had lived like husband and wife for a decade. Therefore, she contended that she was entitled to be treated as his wife and claim maintenance from him.
The Court, however, noted that the offence of rape would not usually arise in respect of relations that take place within a marriage or a similar relationship.
"The relationship between the parties as husband and wife imposes an obligation on both to live together with each other as they were living as husband and wife and if they are living together as husband and wife and have lived years together, as such, then living together and cohabiting may not be an offence punishable under Section 376 IPC. The offence under Section 376 IPC would arise when such relationship is missing," the High Court observed.
It proceeded to uphold a sessions court's decision to quash a trial court order that had earlier granted the woman interim maintenance.
"The fact that the respondent (man) on the complaint of the petitioner no.1 (woman) had been prosecuted and ultimately convicted for an offence under Section 376 IPC and he having been sentenced to imprisonment for such offence makes it difficult to hold that he would be liable to maintain and pay expenses for her maintenance," the Court explained.
The woman had accused her partner of raping her on the pretext of marriage, by claiming to be unmarried when they began a relationship.
They allegedly had a ten-year-relationship, when they 'lived as husband and wife'. They also had a child in 2016. However, the man refused to enter into a contract marriage with the woman, in view of which she filed a rape case against him. He was eventually convicted for rape under Section 376 of the Indian Penal Code (IPC).
However, the woman later sought maintenance from the man for herself and her child. A trial court awarded an interim maintenance of ₹2,000 and ₹1,000 for the woman and her child respectively, to be paid by the man.
However, the man challenged this order before a sessions court, which set aside the trial court order.
The woman then filed an appeal before the High Court. Her counsel argued that she had been in a live-in relationship with her partner for over a decade, had borne a child from the relationship and was entitled to maintenance as a deserted partner. She relied on case laws where women in long-term live-in relationships were granted protection under Section 125 of the Code of Criminal Procedure (CrPC).
The Court held that if the parties had genuinely lived together as husband and wife, their cohabitation could not simultaneously form the basis of a rape charge.
Since the man was convicted under Section 376 IPC on the petitioner’s (woman's) complaint, he cannot be held liable to provide her maintenance, the High Court concluded.
It proceeded to uphold the sessions court's decision to deny the woman interim maintenance, after also noting that a final verdict was yet to be delivered in the maintenance case pending before the trial court.
"Having regard to the facts and circumstances of the case at this stage, while the petition is yet to be decided, she would not be entitled to grant of any interim maintenance under Section 488/125 of the Code of Criminal Procedure. The learned trial Court has fallen in error, while granting interim maintenance in her favour," the High Court said.
The petitioner (woman) was represented by advocate Surjeet Singh Andotra while the respondent (man/ partner) was represented by advocate Pariksha Parmar.
[Read Order]