In an unusual case, the Bombay High Court on Thursday refused to quash an FIR for rape even though the ‘victim’ stated she had a consensual relationship with the accused.
The accused, currently 19 years old, is in judicial custody. He had moved the court seeking to quash the First Information Report.
A bench of justices BP Dharmadhikari and Revati Mohite-Dere, however, noted that the accused was not yet of legally marriageable age.
The FIR can be quashed only after the accused turns 21, the judges said, posting the matter for final hearing.
The accused’s lawyer pointed out that the woman, in her statement to the magistrate, had said that their relationship was consensual and hence there was no offence made out even prima facie.
To which the bench said, “We still can not quash the FIR. We can keep the matter pending, post it for final hearing and hear the arguments on merit then.”
In the meantime, the accused can approach the trial court for bail, the bench said.
The accused, in his petition filed through advocate Shankar Katkar, claimed he and the victim, both 19 years old and residents of Raigad district, were in love.
In December 2018, when they had gone out, a colleague of the woman spotted them and informed her mother.
Before the woman returned home, her mother had registered a case of kidnapping against the accused. The woman’s parents later got the police to add the charge of rape under Section 376 of the IPC to the FIR, the petition claimed.
Subsequently, the two families met and agreed to end the case as the couple wished to marry.
The woman, through her lawyers Manisha Deokar and Prashant Hagare, told the bench that the relationship was consensual.
However, the boy’s age posed a problem after the state’s counsel F R Shaikh pointed out that for a man the legal age of marriage is 21.
His lawyer told the bench that he was also ready to submit an undertaking that he would marry the girl.
The high court said that such undertaking did not have any significance. “What will we do with the undertaking now when this marriage will not be deemed legal since he hasn’t reached the legally permissible age yet?” the bench said.