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HC:Wife gang raped – husband not entitled to divorce

HIGH COURT OF JUDICATURE AT ALLAHABAD

2005 AllLJ 102
AFR
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
First Appeal No. 1084 Of 2003

Sri A …………………………….. Appellant
Versus

Smt. A …………………………………….. Respondent

Sri TP Singh … Advocates for the appellant
Sri Siddharth Singh

Sri Sher Singh
…. Advocate for the Respondent

Coram
Hon’ble Yatindra Singh, J
Hon’ble VS Bajpai, J
Date of Judgement: 5.8.2004
Judgement

HON’BLE YATINDRA SINGH, J
HON’BLE V.S.BAJPAI, J

(Delivered by Hon’ble Yatindra Singh, J)
1. This is an unfortunate case and we are deciding it with heavy heart.
THE FACTS
2. The appellant is the husband of the contesting respondent. The appellant and his two brothers are in Defence Services. However they are not in the officer category. His father was in defence services and has now retired. They have rural background. The appellant has a married sister who resides in the city of the same district. The father of the contesting respondent resides in the adjoining district. The contesting respondent also has rural background and has studied upto High School. Their residences are within the distance of 20 Kms from each other.

3. The parties were married on 11th May 1999 and lived together for some days after their marriage. The appellant joined his duties but could not take the contesting respondent alongwith him. The parties again lived together for some time in the month of October-November, 1999 when the appellant had come to his home district. The time when they were not together, the contesting respondent has been residing at her father’s residence and was visiting her in-laws off and on. The appellant was to come to take the contesting respondent with him but an unfortunate incident took place during 11-13 April 2000. Immediately thereafter the present suit for divorce has been filed by the appellant.

4. The plaint allegations are that:
The contesting respondent has illicit relationship with respondent no. 2.
She had been missing from 11 to 13 April, 2000 for which an FIR was lodged by the father of the contesting respondent on 12.4.2000. She was found in unconscious state on 13.4.2000 near a railway track.
She had left her father’s residence on 11.4.2000 with respondent no. 2 for abortion but later on respondent no. 2 duped her and she was gang raped during 11-13 April, 2000.

5. The contesting respondent filed her written statement. She did not deny that she was missing from 11-13 April, 2000 however she alleged that:
She does not know anyone by the name of respondent no. 2. She neither has any illicit relationship with respondent no. 2 nor anyone else.
Her in laws used to ill-treat her and the appellant had promised to take her with him. She was informed that the Appellant was coming and she was to meet him at the residence of the appellant’s sister.
She had gone to meet the appellant on 11.4.2000 at the residence of the appellant’s sister where the appellant’s father and husband of the appellant’s sister’s were present. They gave her tea mixed with some intoxicant. She became unconscious after taking it. Thereafter she was left near the railway track.
She does not know what had happened with her during 11-13 April, 2000 as she was unconscious.

6. The Trial court held that:
(i)The contesting respondent has no illicit relationship with respondent no 2 or anyone.
(ii)There is no cruelty on part of the appellant or his family members.
(iii)Rape is not a ground for divorce.
On these findings, the suit was dismissed hence the present appeal.

POINTS FOR DETERMINATION
7. We have heard counsels for the parties. Following points arises for determination.
(i) Whether the contesting respondent has illicit relationship with Respondent no. 2.
(ii)Whether the contesting respondent has treated the appellant with cruelty.

POINT NO. 1: NO ILLICIT RELATIONSHIP
8. The appellant, in order to prove his case, has produced himself as PW1 and his father as PW2. The appellant in his cross examination does not doubt about the conduct of his wife; on the other hand he has stated that her conduct was good. He further states that he neither knows respondent no. 2 nor can he recognise him. The father of the appellant has stated in his cross-examination that the contesting respondent has always paid respect to him and the other family members. He has further stated that her character is good and he has never seen the contesting respondent doing anything improper or wrong.

9. The appellant has filed some original documents as well as photostat copies of some letters. The original documents are neither proved nor exhibited. The counsel for the appellant did not refer to the original documents but has referred to the photostat copies of the letters alleged to be written by the contesting respondent. She was not confronted with these copies. They are neither proved nor exhibited. These letters appear to be written in different hand writing and perhaps created for the purposes of this case. No reliance can be placed upon them.

10. The counsel for the appellant also placed reliance on the FIR lodged by the father of the contesting respondent on 12.4.2000. It merely shows that the appellant was missing since 8 pm from 11.4.2000. The fact that the contesting respondent was missing is not disputed. The FIR does not throw any light as to why she was missing or what has happened to her. It is not relevant in deciding the question whether the contesting respondent has any relationship with respondent no. 2 or not.

11. The contesting respondent in order to support her case has produced herself and her father. She has stated in her statement that she neither knows Respondent no. 2, nor has any illicit relation with him or anyone else. There is nothing to show that her statement in this regard is false. There is nothing on record to show that there is anyone by the name of respondent no. 2. There is also nothing on record to show that the contesting respondent has illicit relationship with respondent no. 2 or anyone else. The trial court had occasion to see the demeanour of the witnesses. It has recorded a finding that the contesting respondent has no illicit relationship with respondent no. 2 or any one else and we affirm it.
POINT NO. 2: NO CURETLY
12. No issue on the ground of cruelty was framed by the trial court. The judgement was reserved by the trial court on 6.9.2003 and 9.9.2003 was fixed for the judgement. An application was filed by the appellant on 8.9.2003 that the case may be decided considering the cruelty on the part of the contesting respondent. This was objected by the contesting respondent. The court below while recording a finding on issue no. 2 has expressed its opinion on cruelty also. In these circumstances we also consider it appropriate to express our opinion on the question of cruelty. But first–a few words regarding incident during 11-13 April 2000.

Incident–11-13 April 2000
13. The case alleged by the appellant is that the contesting respondent has run away with respondent no. 2 on 11.4.2000 to have abortion and was later duped and gang raped.

14. The fact that the contesting respondent was missing during 11-13 April, 2000 is not disputed. The dispute is about the reasons for going out on 11.4.2000 and what has happened to the contesting respondent during this period.

15. There is no evidence that the contesting respondent had gone out with respondent no. 2. Apart from it, the contesting respondent was married and had spent some time with her husband. More than nine months had already elapsed since they had lived as husband and wife. The incident is of 10th month. There was no necessity for getting abortion. In case the contesting respondent wanted an abortion then she would have informed her husband and gone with her family members. Apart from it, the contesting respondent would have gone for abortion in the morning so that she may come back by the evening but she would not have gone late in the evening. The case set up by the appellant is not only without evidence but improbable.

16. The contesting respondent in her statement has explained it as follows:
‘The appellant was coming to take her. She was asked to meet him at the residence of the appellant’s sister since the conduct and behaviour of her in-laws was not good. She had gone to the residence of the appellant’s sister where husband of the appellant’s sister and father of the appellant were present. They gave her tea mixed with some intoxicant and she became unconscious after taking it. She has no knowledge as to what has happened to her thereafter.’

17. The Trial court has held that there was neither any demand of dowry nor her in-laws ill-treated her. We have no reason to come to any other conclusion. So part of the case set up by the contesting respondent is wrong. The counsel for the appellant submitted that in case the contesting respondent was not ill treated by the appellant or his family members then there was no occasion for her to go to the residence of the appellant’s sister and the entire case set up by the contesting respondent is false.

18. Merely because a part of the case set up by the contesting respondent is not believed does not mean that the entire case set up by the contesting respondent is false. According to the contesting respondent, she had gone to house of her sister-in-law. It is strange that the appellant’s sister or her husband have not been examined to prove whether the contesting respondent went to their house or not. If the version of the contesting respondent was not true then why did they not support the appellant? They are the appellant’s sister and her husband; closer to the appellant than to the contesting respondent.

19. According to the contesting respondent, her father in-law was also at her sister in-law’s house. The father in law has not stated that whether he went there or not and whether he met the contesting respondent there or not. The appellant’s sister stays in the city. It has come in evidence that he sometimes used to stay at her sister’s house. It is possible that the contesting respondent was given information that the appellant was to meet her there and she went there. It is also possible that while she was going there on 11.4.2000 she met some acquaintance on the way, or she met some acquaintance in the evening of 11.4.2000 who played the dirty trick. Any version may be true: there is more to the case than that what has come before the court. We will never know; both sides seem to be hiding something and the truth seems to be in between.

20. Irrespective of the versions put forward by the parties, one thing is certain: an unfortunate incident has happened with the contesting respondent during 11- to 13 April 2000. In case plaint allegations are to be believed then the contesting respondent was gang raped. There is no evidence for the same but it seems probable and the persons responsible seem to be a known acquaintance and not a stranger. The contesting respondent may not be disclosing the entire picture; it is natural: any girl would be hesitant to talk about it. It is not necessary to probe further in this regard because adultery is a ground for divorce, rape isn’t. There is fundamental difference between the two: one is with consent and the other is without consent. There is no evidence that the contesting respondent was a consenting party or she has committed adultery.

21. The counsel for the appellant placed reliance on the observations of the conciliation committee where it records that the contesting respondent is inconsistent and is not telling the truth. He submitted that her entire story be disbelieved. In order to understand it, we should also understand psychology behind rape and reaction of a rape victim.

22. It is often said that rape is primarily a sexual act and due to this belief the victim is put on trial. Her motives, her dress, and her actions become suspect not only to the police but also to her family and friends. Her credibility is questioned and her sexual activity and private life is made public. Some studies in the western world indicate that rape is a crime of violence, often regarded by the woman as a life-threatening act in which fear, embarrassment and humiliation are her dominant emotions. No wonder the victim is unwilling to talk about it, or is hesitant, or is inconsistent in recalling it. The conciliation committee has not considered this aspect; and if its observations are seen in this light then the entire story of the contesting respondent can not be disbelieved.
Regarding Cruelty
23. The counsel for the appellant submitted that:
The contesting respondent has falsely alleged that his family members had demanded dowry and harassed the contesting respondent.
This is cruelty and
He is entitled to get divorce on this ground.

24. It is true that the contesting respondent has alleged harassment on the part of her in-laws and we have upheld the finding of the trial court negating it. The trial court has negated it on the ground that the contesting respondent had not mentioned it prior to filing of the suit. This can never be cruelty. The allegations in the case should be considered in the background of the case.

25. A sad incident had taken place with the contesting respondent. After this incident, she stayed in her in laws residence for 2-3 months. Her husband was also there for the short time. Thereafter she was sent to her father’s place. One should consider her plight; she went through a trauma; then rejections by her in-laws; thereafter this divorce suit by her husband. If her allegations are seen in these circumstances, then they do not amount to cruelty on her part; perhaps it is the appellant who is being unfair.
26. The counsel for the appellant suggested that:
It is not possible for the appellant move in the society with a person who has been gang raped.
It is a kind of cruelty on him and
He is entitled to get divorce on this ground.
We have no words to describe this submission. The least we can say: we are appalled. It is beyond our comprehension that anyone can even make such suggestion. It shows lack of understanding regarding rape, trauma, and emotional needs of a rape victim.

27. Rape leaves physical as well as emotional scars on the victim. Her physical wounds may be healed but the emotional scars, though less visible, are more difficult to treat. A rape victim goes through a life threatening situation and will need time and support to recover. She feels varying degrees of fear, guilt, embarrassment, and anger. It is important for all those close to her to understand her feelings and support her through the crisis. She is likely to be fearful about the routine activities of her daily life. She may approach strangers and even friends and acquaintances with a new caution. She may feel guilt, wondering why she was the victim. She may question whether she really did ‘ask for it’ or led someone to the wrong impression. She may also be embarrassed about what other people think of her. In such a situation, she needs moral support.

28. What was fault of the contesting respondent in this episode; perhaps she trusted people more than they deserved. Merely for this misjudgement, should she be given this kind of treatment? We don’t think so.

29. A rape victim doesn’t require our condemnation; it is the person who commits rape deserves it. The rape victim doesn’t require divorce suit slapped on her; she doesn’t require court room: she requires counselling, understanding, compassion, and moral support. She is not to be deserted. The appellant’s family has shown some compassion. The father of the appellant has stated good things about the contesting respondent but it is not sufficient; they have to lend moral support and accept her.
CONCLUSION
30. Our conclusions are as follows:
(i)The contesting respondent has no illicit relationship with Respondent no. 2 or anyone else.
(ii)Rape is not a ground for divorce.
(iii)The husband can not claim cruelty because he has to live with a rape victim.
(iv)There is no cruelty on the part of the contesting respondent.
On our findings, the appeal is dismissed with costs.

31. All well that ends well and we hope it will end well. We wish that the appellant and his family members will accept the contesting respondent. We are sure they will have happy, normal life.

Date: 5.8.2004
SKS

End Note-1: Considering the facts of the case we have not disclosed identities of the parties.

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