Consent To Physical Relations Was Premised On Believing That Accused Was Lawfully-Wedded Husband: Telangana High Court Convicts Man For Rape
The Telangana High Court noted that the accused’s alleged customary divorce with his first wife remained un-proved and unsubstantiated.
Justice Moushumi Bhattacharya, Justice B.R. Madhusudhan Rao, Telangana High Court
The Telangana High Court has convicted a man for the offence of rape, saying that the consent to the physical relations was premised on believing that he was a lawfully-wedded husband.
The Court was dealing with a Family Court Appeal arising out of an Order of the Family Court.
A Division Bench comprising Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao observed, “Under section 5(i) read with section 11 of the 1955 Act, if the husband is already a married man, the subsequent marriage is void ab initio and has no sanctity in law. Since the respondent knew at the material point of time that he had a wife living at the time of entering into physical relations with the appellant and the appellant’s consent to such physical relations was premised on her believing that the respondent is her lawfully-wedded husband, the respondent is guilty of the offence punishable under sections 375 and 376 of the IPC and alternatively, under sections 63 and 64 of the BNS.”
The Bench noted that the accused’s alleged customary divorce with his first wife remained un-proved and unsubstantiated and that the Trial Court should have framed an issue in this regard, analysed the same, and arrived at a conclusion.
Advocate Duvva Pavan Kumar appeared on behalf of the Appellant/Wife while Advocate U. Sri Pranav appeared on behalf of the Respondent/Accused Husband.
Brief Facts
An Original Petition was filed by the Appellant-wife under Sections 11, 5, and 25 of the Hindu Marriage Act, 1955 (HMA) read with Section 7 of the Family Courts Act, 1984 (FCA) for a decree of nullity of marriage solemnized between her and the Respondent-accused husband. She claimed that the Respondent was not divorced from his first wife on the date of his marriage with her. She also prayed for a direction on the Respondent to pay Rs. 1 Crore as alimony under Section 25 of HMA.
It was contended by the Appellant that the Respondent committed fraud on her by lying about the dissolution of his first marriage. The Trial Court had dismissed the said Petition on the ground that the Appellant was aware of the Respondent’s first marriage and that the Appellant failed to file any document proving the financial net worth of the Respondent in support of her claim for permanent alimony.
Reasoning
The High Court in view of the above facts, said, “We are hence of the considered view that the respondent committed rape on the appellant under the false pretext of being lawfully-wedded to the appellant.”
The Court took note of the fact that the Respondent remained unrepresented in the Appeal and his whereabouts is not known to the Appellant for over 4 years.
“… the notice addressed to the respondent in the present Appeal was returned with an endorsement “no such person in the address”. To put it simply, the respondent has made no effort to contest the Appeal or pursue the proceedings for restitution of conjugal rights filed before the Additional Family Court at Visakhapatnam”, it added.
The Court held that the Respondent is not inclined to contest the Appeal as he has not shown any inclination or interest in his claim as the spouse of the Appellant.
“The Trial Court assumes that the appellant had knowledge of the divorce since the marriage between the appellant and the respondent was a “love cum arranged marriage”. Not only is this finding completely irrelevant to the nature of the marriage performed between the parties but also is contrary to the record since the respondent has categorically stated in his counter to the petition that their marriage was an arranged marriage”, it further remarked.
The Court was of the view that the Trial Court concluded without basis that the Appellant was at fault for not finding out more about the Respondent’s family.
“… the Trial Court failed to consider that the marriage between the appellant and the respondent, both Hindus, could not have been legally solemnized if the respondent had a spouse living at the time of the marriage”, it also said.
The Court, therefore, concluded that the impugned finding that the Appellant is disentitled to alimony as the second wife of the Respondent is wholly perverse.
Accordingly, the High Court allowed the Appeal and set aside the impugned Order.
Cause Title- ABC v. XYZ (Case Number: FAMILY COURT APPEAL No.19 of 2025)
