One Javed Alam established physical relations with the Prosecutrix for more than one and half year on the promise of marrying her. When the Prosecutrix asked to get married, he laid down a condition of conversion into his Religion by the Prsecutrix in order to marry him.
The father of the Prosecutrix filed an FIR against Javed under Sections 376, 504 and 506 of the Indian Penal Code (IPC) in the Kotwali Police Station, Bikapur, Ayodhya. The father stated that Javed Alam had made a false promise of marriage and maintained physical relationship with his daughter for one and half years.
Javed Alam made an Application for Bail before the Bench of Justice Alok Mathur in the Allahabad High Court as against the FIR filed by the prosecutor. The Advocate appearing on behalf of Javed Alam submitted that the Applicant had not refused to marry the Prosecutrix; he had just levied a condition that the Prosecutrix shall convert her Religion and only then he will marry her.
The Statement of the Prosecutrix was recorded at the time of investigation under Sections 161 and 164 of CrPC and it matched the statement made by the Prosecutor i.e. her father who filed the FIR under Section 176 of IPC. It was stated that since the Applicant had put forth a condition for marriage that the Prosecutrix shall convert her Religion, the Applicant has refused to marry her after establishing physical relations on the false promise of marriage and therefore is an offence under Section 376 of the IPC.
The Advocate for the Applicant stated that no offence has been committed under section 376 of IPC because the Applicant is willing to marry the Prosecutrix provided she converts her Religion. Therefore the Applicant has not committed any fraud to obtain the consent of the Prosecutrix to establish physical relationship.
Upon considering the arguments made by the Counsels, the Court said that the Applicant and Prosecutrix have maintained physical relationship with mutual consent. Also, by the facts it is clear that the Applicant is willing to marry the Prosecutrix and fulfil his promise.
“Even in the statement of the prosecutrix as has been recorded during the investigation, there does not seem to be doubt that the applicant is in any way refusing to marry the prosecutrix but only condition has been imposed about change of religion and, as such, at this stage it cannot be said that the consent for establishing physical relations was made on the false promise of marriage and consequently the consent is hit by the provision of Section 90 of IPC and also considering the fact that the applicant and the prosecutrix both are major and have had physical relations for last one and half year and in view of the peculiar facts and circumstances the present case, I am of the considered opinion that the consent was prima facie not obtained by fraud and consequently, the applicant is entitled to be released on bail,”
Stated the Allahabad High Court in observance of the facts of the case.
The Court granted Bail to the Applicant after levying certain conditions to be fulfilled and also directed him to furnish a personal bond and two (2) Sureties in the amount as stated by the Court.