On July 5, the Delhi High Court said that a disturbing pattern was emerging, where following a sexual assault, the accused marries the victim, seemingly to evade criminal charges and promptly abandons the victim once the FIR is quashed or bail is secured.
Justice Swarna Kanta Sharma refused to quash the FIR against accused Mohd Amaan Malik, charged u/s 363, 366A, 376 and 505 of the Indian Penal Code (IPC) and u/s 6 of the Protection of Children from Sexual Offences (POCSO) Act.
“However, this is an alarming scenario that serves as a stark reminder. In certain instances, following a sexual assault, a disturbing pattern emerges where the accused marries the victim, seemingly to evade criminal charges, only to promptly abandon the victim once the FIR is quashed or bail is secured. Shockingly, numerous cases have come to light where the accused deceitfully enters into a marriage under the guise of willingness, particularly when the victim becomes pregnant as a result of the assault and subsequent DNA testing confirms the accused as the biological father, and even after solemnization of marriage and subsequent immunity from criminal prosecution, the accused heartlessly deserts the victim within a few months,” the court said.
The minor victim was 17 years old when she met the accused, a 20-year-old man, while she was attending tuition classes. The victim revealed, in her complaint, that the accused called her to Sabzi Mandi and then took her to a guest house in his car, where he gave her an alcoholic substance and made physical relations with her without consent. The victim further alleged that the accused, Mohd Amaan Malik, later started blackmailing her and took her to the guest house numerous times, and forcibly made physical relations with her.
On April 7, 2021, the victim realised that she was pregnant and informed her mother about the same. The victim’s mother later informed the accused about the pregnancy through a phone call. The victim alleged that the accused later arrived at her house, threatening the victim and her mother. On April 9, 2021, the accused married the victim by threatening the victim’s mother and made them sign the documents for the marriage ceremony.
The victim, along with the accused, started residing in a rented accommodation near the house of the victim’s mother. The accused later went missing, and whenever he used to come to the rented accommodation, he used to physically assault the victim, molest her and pressurise her to have an abortion. Whenever she used to ask the accused to go to the matrimonial home, he used to tell her that he performed the marriage to “get rid of her.”
When the police investigation ensued, the victim was examined at the LHMC Hospital and was found pregnant. While the foetus was terminated, a DNA examination report revealed that the accused was the biological father of the foetus. The police investigation revealed that the minor victim was born on May 12, 2004, and thus, was a minor at the time marriage was solemnised. The police also obtained the entries from the guest house, where the accused allegedly raped her on numerous instances. The police concluded the investigation and filed the chargesheet.
The accused’s counsel argued that the documentary evidence in the case falsifies the victim’s statement. The counsel further argued that the victim is not trustworthy. The accused’s counsel claimed that it was a “love affair” and that the parties were married to each other willingly.
The accused’s counsel further argued that as both parties are Muslims, they are governed by their personal laws, and thus, the marriage between the parties is valid as the victim had attained the age of 15. Thus, the counsel argues that the marriage is not an offence, and thus, the provisions of POCSO would not be attracted.
Meanwhile, the state’s counsel argued that the victim recorded her statement in accordance with the provisions of the Criminal Procedure Code (CrPC). The counsel alleged that the accused made sexual relations with the victim forcibly, as mentioned in the victim’s statement.
“Consent of the minor is no consent in the eyes of law,” the state’s counsel argued.
The court referred to judicial precedents and said that there are conflicting judgements on whether a married under Muslim Law would be governed by the personal law or POCSO and Child Marriage Restraint Act. However, instead of delving further into the issue of the validity of marriage, the court observed that the allegations of rape predate the marriage.
The court rubbished the accused’s argument that the victim’s mother’s consent for marriage constitutes a ground for holding that the relationship between the accused and the victim was consensual.
“Even if this Court will consider this argument to be correct, this Court again reaches the same conclusion that when the alleged offence had taken place, even if that had taken place with the consent of the minor, which she denies completely and states that the same was under threat, pressure and intimidation, there is no ground made out for quashing of the FIR as the consent of a minor was of no consequence for the purpose of sexual relationship,” the court said.
The court noted that the minor victim has specifically denied that the sexual relationship was made with her consent, and has explained the circumstances where she was first sexually assaulted, and thereafter, repeatedly sexually assaulted under threats of leaking her inappropriate photographs. The court said that, on the merits of the case, it cannot come to the conclusion that “the allegations against the petitioner (Mohd Amaan Malik) are absurd in nature or improbable or that the offence alleged could not have taken place.” Thus, the court refused to quash the FIR against the accused.
The court concluded, “Accordingly, the present petition stands dismissed along with pending application.”
