'Will You Marry Her?' Supreme Court Asks Man Accused Of Raping Minor; Grants Him Protection From Arrest
LIVELAW NEWS NETWORK1 March 2021 3:27 PM
Bombay High Court POCSO Judgment
The Supreme Court on Monday asked a 23-year old man, who stands accused of raping a minor girl when she was aged around 16 years, whether he will marry her.
A bench headed by the Chief Justice of India was hearing a special leave petition filed by the man, who is now a government servant in Maharashtra, against an order of the Bombay High Court(Aurangabad Bench) which cancelled his anticipatory bail(Case : Mohit Subhash Chavan v State of Maharashtra).
"Will you marry her?", CJI SA Bobde asked the petitioner's lawyer when the matter was taken.
"I will take instructions", Advocate Anand Dilip Langde, petitioner's lawyer responded and sought a pass over. The lawyer submitted that his client was a government servant who will be suspended from service if arrested in the case. The petitioner, Mohit Subhash Chavan, presently aged 23 years, was accused of raping a 16 year old girl during 2014-15.
"You should have thought before seducing and raping the young girl. You know you are a government servant", the CJI replied.
"We are not forcing you to marry. Let us know if you will. Otherwise you will say we are forcing you to marry", the CJI added.
When the case was taken again after other matters, the lawyer informed that marriage was not possible as the petitioner had married someone else. The lawyer added that the petitioner initially wanted to marry her but she refused.
After that, the bench dismissed the petition giving him liberty to seek regular bail. The bench, also comprising Justices AS Bopanna and V Ramasubramanian, also granted the petitioner protection from arrest for four weeks.
The FIR against the petitioner was lodged in 2019 under Sections 376, 417, 506 of the Indian Penal Code and under Sections 4 and 12 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") by the girl.
The girl alleged that during 2014-2015, when she around 16 years of age and was studying in the ninth standard, the accused used to stalk her. Since he was her distant relative, he used to keep coming to her house. She further alleged that during that period, he clandestinely entered into the house from a backside door and committed rape on her. He also threatened her of consequences if the incident was disclosed. She further alleged that even thereafter he continuously stalked her and threatened her. She alleged that he used to come frequently to her house and used to have sexual intercourse.She has also stated that sometimes, he used to use contraceptive. Since she was afraid, she never disclosed this fact to anybody.
It was further alleged that when she tried to lodge a police complaint with the help of a social worker, the mother of the accused dissuaded her from it saying that she will accept her a as a daughter-in-law. She further alleged that the petitioner once got executed a writing on a stamp paper from her illiterate mother,stating that there was an affair between the two and with her consent, they both had indulged in sex. It was promised that he will marry her after she attained majority.
However, the accused backtracked from his promise and married someone else.
After the accused was granted anticipatory bail by the Sessions Court, the girl approached the Bombay High Court seeking its cancellation.
In the order cancelling his anticipatory bail, the Bombay High Court observed that the accused had sexually exploited the girl for a sufficiently long period.
"One can easily conclude that going by the allegations respondent No.2(the accused) has sexually exploited the applicant for a sufficiently long period, since she was around 16 years of age. The papers of investigation would further corroborate the applicant's version about execution of a writing on a stamp paper of Rs.500/-. Respondent No.2 and his family seem to be so influential that they could get executed this writing from the applicant and her widowed mother. The very fact that they could get such writing executed is indicative and is sufficient to infer that respondent No.2 had indulged in sex with the applicant even when she was merely 16 years of age. Pertinently, this writing also bears his signature and signature of his mother".
The High Court even went to the extent of saying that the Sessions Court's order granting bail was "atrocious". The Sessions Court observed though the girl was a minor, she was of "sufficient maturity" as she "has with meticulous details mentioned about use of contraceptive" by the accused.
Taking strong exception to the "lack of sensitivity" shown by the Sessions Court, Justice Mangesh S Patil of the High Court observed:
"The approach of the learned Judge from such a reasoning clearly shows his utter lack of sensitivity in such serious matters. Inspite of having noted that the applicant was still a minor when respondent No.2 had sexually exploited her and inspite of observing that her consent would be immaterial,he has concluded that it was a consensual relation. Astonishingly, merely because she has mentioned in the FIR about use of contraceptive by respondent No.2, the learned Judge has jumped to the conclusion that she was having sufficient maturity. The height is committed by the learned Additional Sessions Judge even to record an observation that there is a possibility of false implication of respondent No.2. Such an approach is a clear indication that the learned Judge utterly lacks competence. It is indeed a matter which deserves a serious consideration"
