SANDEEP KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Prayer in this petition filed under Section 438 of the Code of Criminal Procedure, 1973 is for grant of anticipatory bail to the petitioner in case FIR No.560 dated 27.08.2016 under Sections 376(2)(n)/506 IPC registered at Police Station Civil Lines Hisar, District Hisar.

(2.) The aforesaid FIR was registered at the behest of the complainant against the petitioner. As per the FIR, the complainant, who was a widow and residing at H.No.14H/1HAU Old Campus, Hisar, got married to the petitioner on 04.03.2007. Her first husband Ramphal Malik had died on 06.10.2002. The petitioner was a student of Animal Husbandry Department, where the complainant was working. After having talks with the complainant for few days, the petitioner came to her house during the night of 03.03.2007 and committed rape upon her by using force and threatened her (complainant) that in case she discloses this fact to anybody, he (petitioner) would commit suicide. However, on the very next day, i.e. on 04.03.2007, he arranged a havan (religious ceremony) and solemnized marriage with the complainant, with an assurance to rehabilitate her and to nourish her three daughters from her first marriage. The family members of the complainant were also present at that time. Thereafter, the petitioner remained with the complainant as her husband. Similarly, the complainant also stayed with him as his wife. The complainant had also helped the petitioner financially so as to enable him to pursue his studies. On 26.07.2016, the petitioner visited her house and had sexual intercourse with her. He arranged food to the complainant and her two daughters Sonia and Sunaina at Hotel Karandeep. Even on 27.07.2016, he did not allow the complainant to go to her office and asked her to take leave. When Sonia and Sunaina (the two daughters) had gone to their school and college, the petitioner again committed rape upon the complainant against her wishes. Thereafter, he left the house saying that he has to go to Gurgaon. On 01.08.2016, the prosecutrix came to know that the petitioner had solemnised second marriage with Monika resident of Village Pali Haal, Azad Nagar on 13.07.2016, without taking divorce from her, despite the fact that the law does not permit such marriage. When the complainant talked to the petitioner, he came to her house and threatened her that this marriage was solemnised by his parents under pressure and in case, she discloses the factum of his marriage with her, he will kill her and nobody will come to know about her death or he will also commit suicide and the complainant along with her daughters shall be sent to jail. In this manner, the petitioner without taking divorce from the complainant has solemnised another marriage and has been committing rape upon her while staying with her since 2007. He had also prepared an obscene video of the complainant, which she had also seen and now, he has threatened to kill the complainant.

(3.) Mr. Ashish Aggarwal, learned senior counsel appearing on behalf of the petitioner-accused, has argued that the petitioner has already joined the investigation in terms of the interim order passed by learned Additional Sessions Judge, Hisar. The complainant has got the instant FIR registered against the petitioner with an intention to settle the matrimonial dispute on her own terms. At the most, the parties were in live-in relationship and they were not married. He has further submitted that assuming, for the sake of arguments, that the petitioner had solemnised marriage with the another lady, namely Monika during subsistence of his earlier marriage, then at the most, the petitioner can be booked for bigamy under Section 494 and not for rape under Section 376 IPC. The offence under Section 494 IPC is otherwise bailable. He has referred to judgment of the Apex Court in the case of Kanwal Ram and ors. Vs. The Himachal Pradesh Administration 1966 CriLJ 472 to contend that in order to make out an offence under Section 494 IPC, second marriage must be proved and non-proof of essential ceremonies of such marriage, conviction for bigamy is not justified. The second marriage is a fact, therefore, the essential ceremonies constituting it, must be proved. Admission of such marriage by the accused in itself is not sufficient evidence for it for the purpose of proving marriage in a case of adultery or bigamy. He has also referred to judgment of the Apex Court in the case of Indra Sarma Vs. VKV Sarma 2013 (15) SCC 755 to contend that live-in marriage like relationship is neither a crime nor a sin, though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.