‘Relationship gone wrong and sour’; Bombay HC quashes case under S.376(2)(n) IPC against advocate

Bombay High Court: In the present case, petitioner faced charges for offences punishable under Sections 376(2)(n)¹, 504², and 506³ of the Penal Code, 1860 (‘IPC’), pursuant to the filing of FIR by the complainant-Respondent 2. The Division Bench of Bharati Dangre and Manjusha Deshpande, JJ., opined that from the complaint itself, it was evident that, petitioner, and Respondent 2, being two consenting adults had indulged in a relationship, which had gone wrong and sour, as a result, the respective parties had filed criminal proceedings against each other. The Court thus held that the allegation by Respondent 2 of Section 376(2)(n) along with Sections 504 and 506 of IPC were not made out.

Background

Petitioner stated that during May 2020 to January 2021, Respondent 2 was going through a divorce wherein she had sought legal advice from him and it was a clear understanding between him and Respondent 2 that he would not appear for her in any proceedings in Pune but would guide her through the process and thus, Respondent 2 agreed for professional fees of Rs 5,00,000 to be paid to petitioner. Since petitioner was facing financial crunch due to Covid-19 pandemic, he sought financial assistance from Respondent 2, during the period May 2020 to January 2021 and thus Respondent 2 transferred Rs 33,00,000 to petitioner’s account. By 03-08-2022, petitioner repaid Rs 28,00,000 to Respondent 2 and submitted that Respondent 2 admitted that settlement of the loan amount was done.

Petitioner stated that even after settling the loan amount Respondent 2 started demanding Rs 5,00,000 from him and threatened him that if he did not return the said amount, she would lodge a false complaint against him. Therefore, he filed a private complaint against Respondent 2, before the Metropolitan Magistrate at Kurla, under Section 385⁴ of IPC on 16-10-2022 and since Respondent 2 continued her threats, petitioner filed one more private complaint against her before the Judicial Magistrate First Class at Pune on 11-01-2023 for the offence punishable under Section 385 of IPC. Counsel for petitioner stated that by way of counter blast, Respondent 2 filed a case on 27-01-2023, alleging offence punishable under Sections 376(2)(n), 406⁵, 420⁶, 504, and 506 of IPC.

Respondent 2 stated that she and petitioner were acquainted with each other as they were classmates in school and reconnected with each other in January 2020. Further, it was stated that petitioner and Respondent 2 became intimate, since he exhibited sympathy and affection towards her, and she also believed him and their physical relations further continued, both with and without her consent. In September 2020, Respondent 2 started to reside with petitioner and during her stay with him, there were differences between them, and he used to abuse her in front of her close friends.

In January 2021, Respondent 2 obtained a decree of divorce from her husband, and thereafter, she and petitioner were going to get married on 05-05-2021. Later, Respondent 2 came to know that he was having affair with other girls while he was staying with Respondent 2. When Respondent 2 confronted him, he ignored her questions and threatened her. Therefore, she left him and came back to reside with her mother. Even though their relationship had gone sour, Respondent 2 ignored all the differences and started meeting him again. When she reminded him about the remaining Rs 10,00,000 which were due towards her, he returned Rs 5,00,000 and Rs 5,00,000 was still pending. Petitioner threatened and caused her mental harassment by informing her that he filed a complaint against her for the offences punishable under Sections 38 and 506 of IPC and since she demanded residual amount which petitioner did not return, she filed complaint against him.

Analysis, Law, and Decision

The Court, after considering the contents of the FIR, opined that the offence punishable under Section 376(2)(n) of IPC was not made out. The Court stated that rape was committed when there was physical relationship imposed on a woman against her will, without her consent and Respondent 2’s conduct of residing with him for months together along with her son and with the permission of her family, did not support her allegations that petitioner had committed rape which would fall under Section 376(2)(n) of IPC as the said section was about rape being repeatedly committed on the same woman.

The Court noted that while Respondent 2 was still married, she established a relationship with petitioner for a considerable period and she also chose to be with him on her own free will and with the permission of her family. The Court opined that the present case was not merely a case of relationships having gone sour, but even financial transactions appear to have gone wrong.

The Court relied on Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 (‘Pramod Suryabhan Pawar Case’), wherein the Supreme Court dealt with the allegations of Section 375⁷ of IPC on the background of physical relationship, on the pretext of the false promise of marriage and the consent given by a woman for such relationship. The Court opined that Respondent 2 stated in her complaint that while her marriage was in subsistence, she indulged in physical relationship with petitioner and she on her own had left him on the ground of infidelity. Thus, the Court stated that petitioner’s case was covered by the prepositions of law laid down in Pramod Suryabhan Pawar Case (supra).

The Court also relied on Naim Ahmed v. State (NCT of Delhi), Criminal Appeal No. 257 of 2023, wherein the facts were similar to the facts of the present case and the Court had held that as the woman had resided with the accused during the subsistence of her marriage leaving her husband, it could not be said that the woman had given her consent for sexual relationship to hold accused under the misconception of fact and guilty for committing rape within the meaning of Section 375 of IPC.

The Court held that the allegation by Respondent 2 of Section 376(2)(n) along with Sections 504 and 506 of IPC were not made out. The Court opined that from the complaint itself, it was evident that petitioner and Respondent 2, being two consenting adults had indulged in a relationship, which had gone wrong and sour, as a result, the respective parties had filed criminal proceedings against each other and if the criminal procedures were allowed to be continue, it was not likely to result in conviction. Therefore, it would amount to abuse of process of law if such proceedings were allowed to be continued. The Court thus quashed and set aside the case, which was registered at Alankar Police Station, Pune, for the offence punishable under Sections 376(2)(n), 504 and 506 of IPC.

[XYZ v. State of Maharashtra, 2024 SCC OnLine Bom 3645, decided on 14-11-2024]

*Judgment authored by: Justice Manjusha Deshpande

Advocates who appeared in this case:

For the Petitioner: Satyavrat Joshi i/b Samay Pawar, for the Petitioner.

For the Respondents: S.V. Gavand, APP, for the State-Respondent 1; Anjali Patil, for the Respondent 2.