Every case of 'physical contacts' before breach of promise to marry cannot be said as rape, says the Bombay High Court

In a significant decision, the Bombay High Court has held that every breach of promise to marry does not necessarily amount to rape. The Court also observed that pre-marital sex between couples is no longer shocking in India's big cities. 

Bombay High Court

The observations of the Court came earlier this month, during the hearing of an anticipatory bail application filed by a Nashik resident who was booked on charges of cheating and rape following a complaint filed by his former girlfriend.

The victim who claimed she was pregnant with the petitioner’s child, said despite promising to marry her, he had married another girl. The petitioner, on the other hand, claimed the relationship was consensual, and they could not marry as they belonged to different religions. The victim and the accused, both lawyers, knew each other since 1999 and had a physical relationship since 2006. The victim claimed that the accused had promised to marry her. In 2009, when he said he could not, she had tried to commit suicide. She said that they continued physical relations even after that. 

"Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive," said Justice Mridula Bhatkar, adding, "Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society."

The court said a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not. 

"Today the law acknowledges live-in relationship(s). The law also acknowledges a woman's right to have sex, a woman's right to be a mother or a woman's right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted," the judge said. 

The High Court also gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape - an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl. 

The Court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. "A couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed," said the judge. 

The High Court said both the victim and the accused were educated. "The complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied," the judge said, while granting anticipatory bail to the accused. 

The High Court said if the victim chooses to have the baby, she could adopt legal proceedings against the accused to secure the child's rights.

There is no prohibition for a decree-holder to seek an order of arrest of the judgment-debtor from the execution Court before seeking attachment of his properties, holds the Madras High Court

The Madras High Court Bench at Madurai has held that there is no prohibition under Code of Civil Procedure (C.P.C.) for a creditor bank to seek a court order for arresting loan defaulters even before exercising the option of filing an application in the court concerned to seek attachment of their properties.

Madras High Court

Justice M. Duraiswamy passed the judgment in a civil revision petition filed by noted television personality Mr. N.S.S. Nellai Kannan challenging the order of arrest passed by the lower Court in an Execution Petition filed by his creditor-bank. 

The judgment of the Court will clea the decks for the arrest of Mr. N.S.S. Nellai Kannan and his son N.K. Arumugam for failing to repay a personal loan of Rs 5 lakhs obtained from the Tamilnad Mercantile Bank in the year 2003.

Observing that the third Additional District Sessions Court in Tirunelveli had rightly ordered the arrest of the loan defaulter and his son, the guarantor, on April 30, 2012, the Court directed the lower court to complete the execution proceedings within three months. The bank’s counsel, V. Karthikeyan, said the orator had taken the loan on December 13, 2003, and agreed to repay it in 60 equated monthly instalments of Rs 11,784, including 14.5 per cent interest per annum. His wife and son were the guarantors.

When he defaulted, the bank filed a civil suit before the District Court in Tirunelveli in December 2006 for recovering the principal and interest totalling Rs 6.52 lakh. Mr. N.S.S. Nellai Kannan contested the suit by accusing the bank of charging an exorbitant interest rate.

The District Court on July 1, 2010, decreed the suit in favour of the bank and directed the noted television personality Mr. N.S.S. Nellai Kannan to repay the amount along with 17.75 per cent interest per annum from the date of filing of the suit. It also ordered him to pay Rs 58,061 towards litigation expenses.

When Mr. Nellai Kannan did not comply with the order, the bank filed an execution petition in 2012 and sought direction to arrest him and his son and lodge them in a civil prison for recovery of the loan amount which had risen to over Rs 10.62 lakh due to non-payment for years.

The District Court in an order passed in the said execution petition ordered their arrest and production before it on June 8, 2012. 

Immediately, the father-son duo filed a civil revision petition in the High Court Bench here in 2012 and obtained an order of stay of the impugned order thereby managing to keep the arrest order in abeyance until disposal of the civil revision petition.

 

Justice Duraiswamy before whom the revision came up, found the same to be devoid of merits and accordingly dismissed it by his judgment. 

Once the decision taken by a judicial authority under Section 8(1) of the Arbitration & Conciliation Act declining to refer the dispute to arbitration has become final, jurisdiction of the Chief Justice under Section 11(6) of the Act cannot be invoked

The Supreme Court of India has held¹ that either party to the proceedings cannot invoke the jurisdiction of the Chief Justice under Section 11(6) of the Arbitration and Conciliation Act, 1996 after the decision taken by a judicial authority under Section 8(1) of the Act declining to refer the dispute pending before it to arbitration and the said decision has become final.

The case involved a suit filed by a partnership firm, viz., M/s. Rana Sahebram Mannulal and three others before the Court of the Civil Judge Senior Division at Aurangabad, Maharashtra. The appellants before the Supreme Court were defendants 1 to 3 in the said suit. The dispute mainly pertained to the partnership business.

Upon entering appearance, the defendants/appellants had filed an application under Section 9A of the Code of Civil Procedure, 1908 to dismiss the suit for want of jurisdiction since the partnership deed contained a provision for arbitration and hence the disputes were liable to be resolved in terms of the Act. In other words, the application filed by defendants, in essence, was to be treated as an application under Section 8(1) of the Act. The same was opposed by the plaintiff. The trial court upheld the objection and held that it was within the jurisdiction of the court to try the dispute and, therefore, it was not required under law to refer the same to arbitration.

The suit proceeded. The parties have examined all their witnesses.

While so, the respondents herein approached the Chief Justice of the High Court of Judicature at Bombay by filing an application under Section 11(6) of the Act seeking appointment of an arbitrator as per the terms of the partnership deed. The appellants opposed the prayer.

The High Court, as per the impugned order, ignored the objection and held that Section 8(3) of the Act does not preclude appointment of arbitration during course of the litigation pursuant to an agreement

“4. Sub-section (3) of Section 8 of the Act does not preclude appointment of arbitration during course of litigation pursuant to agreement. Taking into account sub-section (3) of Section 8 and Section 11 of the Arbitration and Conciliation Act, 1996, it would be expedient that pursuant to clause 6 of the partnership deed, a proper person be appointed as arbitrator to entertain dispute between the parties,” so held the High Court.

The defendants in the suit, aggrieved by the order of the High Court carried the matter in appeal to the Supreme Court.

The Apex Court Court was thus essentially confronted with the issue as to whether either party to the proceedings can invoke the jurisdiction of the Chief Justice under Section 11(6) of the Act after the decision taken by a judicial authority under Section 8(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) declining to refer the dispute pending before it to arbitration and the said decision has become final. The scope of Section 8(3) of the Act was also an ancillary issue before the Court.

The Court held that the facts of the case would show that the application filed by the respondents before it under Section 11 of the Act was nothing but an abuse of process. “The partnership firm itself is the first plaintiff in the suit. The dispute between the parties is the subject of the suit. Precisely for that reason, the appellants sought the matter to be referred to the arbitrator. That was opposed by the respondents. When the suit is at the final stage, the respondents have sought appointment of an arbitrator under Section 11(6) of the Act. Having approached the civil court and having opposed the reference to arbitration under Section 8(1) of the Act and the decision of the court in that regard having become final, the respondents cannot invoke jurisdiction under Section 11(6) of the Act; it is hit by the principle of issue estoppel.”

The Court explained further: “Under Section 8(1) of the Act, either party is free to apply to the judicial authority within the prescribed time to refer the parties to arbitration, in case the matter pending before it is the subject matter of an arbitration agreement. Section 8(3) of the Act however makes it clear that notwithstanding the application under Section 8(1) of the Act and the issue pending before the judicial authority, arbitration may be commenced or continued and an arbitral award can also be made. In other words, despite the pendency of an application under Section 8(1) of the Act before the judicial authority, Section 8(3) of the Act permits the parties to commence and continue the arbitration and the arbitral tribunal is free to pass an award. That alone is what is contemplated under Section 8(3) of the Act.

Writing the judgment for the Bench, Justice Kurian Joseph opined that the principle of res judicata would also come into play once the decision of the Civil Court under Section 8(1) of the Act had become final. He said: “In the suit instituted by the firm and some of the respondents, the order passed by the civil court that it was well within its jurisdiction to try the suit, despite the objection regarding the existence of a clause for arbitration, has become final. Thereafter, Section 11(6) jurisdiction of the Chief Justice cannot be invoked by either party. The principle of res judicata will also be attracted in such a case.”

The Bench of Kurian Joseph and Anil.R. Dave, JJ. thus held : “once the judicial authority takes a decision not to refer the parties to arbitration, and the said decision having become final, thereafter Section 11(6) route before the Chief Justice is not available to either party.”

The Apex Court accordingly set aside the impugned order and allowed the appeal with costs of Rs.25,000/-.

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1. Anil @ v. Rajendra, Civil Appeal No. 11604 /2014 [Arising out of S.L.P. (Civil) No. 15314 of 2014, decided on 18.12.2014

Jessica Lal murder case: Manu Sharma granted parole by the Delhi High Court

Jessica Lal

Siddharth Vashisht alias Manu Sharma, undergoing life term for killing model Jessica Lall in 1999, was on Friday granted parole for 30 days by the Delhi High Court to enable him appear for his final year post-graduation exams, which are scheduled to commence on January 1, 2015. 

Manu Sharma was granted parole subject to certain conditions imposed by the Delhi High Court. The Court took into account the argument advanced by Manu Sharma’s Counsel that his client’s conduct had always been good while in prison and the same has been appreciated by the Tihar jail superintendents concerned, for which he was even awarded. His counsel also claimed that Manu Sharma, through his NGO, Siddharth Vashisht Charitable Trust, has done work for the education of the children of jailed inmates and his efforts have been appreciated by the Lieutenant Governor. The Court was also influenced by the fact that the only objection raised by the Delhi Police to granting Manu Sharma parole was his unsatisfactory conduct back in 2009 when he was granted a similar relief.

 

 Justice S Muralidhar granted parole to 37-year-old Sharma on the condition that he shall furnish a personal bond of Rs 50,000 with one surety, for the like amount, who shall be a family member. 

The Court also directed that Sharma will not leave the National Capital Territory of Delhi for the duration of the parole which shall be effective from the date of his release. 

The Court also directed that Manu Sharma keep away from the area around the residence of the deceased and her family members.

Siddharth Vashisht alias Manu Sharma is pursuing his post-graduate course from the Indian Institute of Human Rights in New Delhi.