Delhi HC reduces sentence of man found guilty of “sexual adventurism”

The Delhi High Court last week reduced the sentence of a man who was given life imprisonment for remarrying and having sexual relations after concealing the fact that he was already married..The prosecutrix (referred to as ‘M’ in the judgment) had filed a police complaint in August 2013, alleging that the accused Mahendra had fraudulently contracted marriage with her, and having consummated the marriage, outraged her modesty, all the while presenting his wife Vijeta as his sister. M claimed that she came to know that the accused was married to Vijeta after watching a news item on television, more than a year after the marriage..M also claimed that a theft was reported from her father’s house on July 23, and a day later, her husband had fled the house, taking the car. The chargesheet notes that Mahendra was arrested in October 2013, and that he along with Vijeta confessed to their crime..In February, the Additional Sessions Judge found Mahendra guilty of having committed offences under Sections 375, 493 and 495 of the Indian Penal Code, and sentenced him to life imprisonment and a cumulative fine of Rs. 6 lakh. At the same time, the ASJ acquitted Vijeta of having committed a crime under Section 120-B read with Section 376..Subsequently, Mahendra appealed against the sentence of the trial court, whereas the state appealed against the acquittal of Vijeta before the Delhi High Court..With a view to deciding the appeal, the Division Bench of Justices SP Garg and C Hari Shankar considered Section 375 IPC, and more specifically, the ‘Fourthly’ clause, which states.Rape. – A man is said to commit ―rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:–.(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married..The Bench culled out two questions in order to determine Mahendra’s guilt under this provision:.(i) whether the prosecutrix M was lawfully married to Mahendra and,.(ii) if not, whether she consented to sexual relations with Mahendra because she believed herself to be lawfully married to him.“It is only if the answer to the first question is in the negative, and the answer to the second question is in the positive, that Mahendra could be alleged to have committed the offence of rape, under clause Fourthly of Section 375 of the IPC”, the Bench observed..Advocate Ajit Kumar, appearing for Mahendra, contended that his client and Vijeta were not married and were only in a live-in relationship, and thus Mahendra could not suffer from penal consequences..The trial court had relied on the birth certificate of the child of Mahendra and Vijeta, as well as a sale deed to rely on the fact that they were indeed husband and wife. While the High Court found that Mahendra and Vijeta were indeed the parents of the child, it observed that having a child is not necessarily proof of marriage between the parents of the child..However, the sale deed had revealed that they both attested to being married to each other, and in the absence of an attempt to prove otherwise, “the inevitable conclusion is that the marital relationship between Vijeta and Mahendra stands proved”..The second condition was also deemed to be proved as it was,.“apparent from the fact that sexual relations, between ‘M’ and Mahendra commenced only consequent upon, and subsequent to, their marriage.”.Therefore, the offence under Section 375 stood proved..The Court, however, could not be satisfied that the offences under Section 493 (Cohabitation caused by a man deceitfully inducing a belief of lawful marriage) and Section 495 (Same offence with concealment of former marriage) had been committed. This, because it could not be proved that Mahendra had deceitfully concealed his former marriage with Vijeta..It was noted that there was no independent corroboration of the alleged misrepresentation, by Mahendra and Vijeta, that Vijeta was the sister of Mahendra. Further, the fact that the trial court had acquitted Vijeta of having conspired with Mahendra in inducing M to enter into sexual relations with Mahendra, proved to be a turning point in the case..“In fact, we are surprised at the fact that, having acquitted Vijeta, on the basis of the said reasoning, the learned ASJ, nevertheless, convicted Mahendra, under Sections 493 and 495 of the IPC. In the absence of any other corroborative evidence, we are unable to hold that there was positive deceit, or concealment, practised by Mahendra, or by Vijeta, on the supposedly innocent prosecutrix ‘M’, which persuaded her to agree to cohabit with Mahendra.”.The Bench further criticized the ASJ for being too harsh with his sentence, stating that the observations made by the judge were “completely fanciful and platitudinous and totally unwarranted”..“…the prosecutrix ‘M‘ could not be likened to an innocent prey of a sexual predator. There is no allegation, at any point in the proceedings, of Mahendra having compelled, far less forced, ‘M‘ to submit to his sexual overtures. Rather, it is clear that, of her own will and volition and with full consent (in fact, if not in law), ‘M‘ maintained a normal sexual relationship with Mahendra, and that the provocation, for her to set in motion, against him, the criminal law of the land, was only the fact of his earlier having been married to Vijeta of which, ‘M‘ would assert, she came to know much later…”.In this light, the Court felt that reducing Mahendra’s sentence to seven years rigorous imprisonment along with a fine of Rs. 10,000 would be more than enough to deter him from “indulging in such sexual adventurism in future”..Read the judgment: