PETITIONER:
SHRI BODHISATTWA GAUTAM
Vs.
RESPONDENT:
MISS SUBHRA CHAKRABORTY
DATE OF JUDGMENT15/12/1995
BENCH:
AHMAD SAGHIR S. (J)
KULDIP SINGH (J)
CITATION:
1996 AIR 922 1996 SCC (1) 490
JT 1995 (9) 509 1995 SCALE (7)228
ACT
HEADNOTE
JUDGMENT
JUDGMENTS. SAGHIR AHMAD. J.
Subhra Chakraborty (alias - Kalpana) who was a student of the Baptist College, Kohima where the opposite party, Shri Bodhisattwa Gautam was a lecturer, filed a complaint in the Court of the Judicial Magistrate, Ist Class, Kohima, Nagaland, alleging, inter alia, as under :-
"3. That, your complainant begs to
state that in April 1989 the accused
person entered into Baptist College,
Kohima as a Lecturer thereof and the
complainant was a student of the said
College at that relevant period.
4. That, the accused person was in
said Service in Kohima from April 1989
till he resigned the Service on 27th
Jan, 1995 and was residing in a rented
house in Kenezou Valley, Kohima owned by
Dr. Zakiebatsu Angam.
5. That, on 6th Feb. 1995 the accused
person left for silchar and presently
residing in his uncle’s (Shri Amiya
Kanta Chakraborty) house in Premtala,
Silchar-4, Dist. Cachar, in the State of
Assam and assumed his service as
Lecturer in Cachar College (Commerce
Dept.) Silchar - 4 (Assam).
6. That, on the 10th June, 1989 for
the 1st time the accused visited the
complainant’s residence in Kohima and
thereafter often he used to visit
complainant’s residence, as a teacher he
was respected by the complainant as well
as all the members including her
parents. In course of such visits once
in the month of Nov. 1989 the accused
voluntarily told your complainant that
he was already in her love. Thus there
developed a love affair between
themselves since 1989.
7. That, the complainant most humbly
states further that with malafide
intention to practise deception on the
complainant, the accused gave false
assurance of marriage to the innocent
complainant and thereby the accused
dishonestly procured sexual intercourse
with the complainant. The accused often
use to induce the complainant to have
biological contact with him, but
whenever he was approached by the
complainant to complete the marriage
ceremony, the accused very tactfully
used to defer the marriage sometimes
saying that he was waiting for his
parents formal consent and sometimes
saying to cooperate him till he got a
Govt. Service.
8. That, in course of continuation of
the affairs between the complainant and
the accused, the complainant got
pregnant twice, once in the month of
September, 1993 and secondly on in the
month of April 1994 out of her co-
habitation with the accused person.
9. That, the complainant being worried
about her said pregnancy created
pressure upon the accused to marry her
immediately and to save her from being
ruined, but the accused on the plea of
his parents permission went on deferring
the marriage, as a result there was a
quarrel in between the complainant and
the accused, where after the accused
lastly opined for secret marriage to
avoid social gathering as he was waiting
for his parents permission. The
complainant being pregnant was placed in
a very awkward position, as such, agreed
to said secret marriage, accordingly the
accused on the 20th September, 1993,
married the complainant in front of the
God he Worships in his residence in
Kenozou Valley, Kohima by putting
Vermilion (sindur) on the complainant’s
forehead and accepted the complainant as
his lawful wife and thus the complainant
was consorted and consoled. But the
complainant faced further corporal
punishment, as the accused kept on
insisting the complainant to be
refrained from giving birth to the baby
and was pressurizing her to undergo
operation/abortion despite her refusal
for the same. The accused with
fraudulent intention to deceive the
complainant proposed the said abortion
on the plea that birth of the baby would
be a barrier to convince his parents to
accept the complainant as their
daughter-in-law and such event would
lead the complainant to a path of
unhappiness. The complainant being an
innocent lady failed to understand the
accused’s wicked and mischievous plan
whereby the accused succeeded and
dishonestly motivated the complainant to
undergo operation in the Putonou Clinic,
Kohima and aborted in October’ 93.
10. That, the said Ceremony of giving
Sindur (Vermilion) on the complainant’s
forehead by the accused in front of the
God made the complainant to believe that
she was lawfully married wife of the
accused and with such believe she in
good faith completely submitted herself
to the accused as an ideal wife and
never disbelieved the accused. The
complainant even did not have any doubt
as to why the accused insisted her to
keep their marriage secret. The
complainant was forced to undergo
abortion even second time in the month
of April’ 94 in the CAREWELL NURSING
HOME at Dimapur with the pretext that if
the complainant gave birth to any child
before the accused could convince his
parents she would never be accepted by
Bodhisatta’s parents and relatives
further their marriage being a secret
one, the developed stage of the
complainant would hamper the dignity of
her own parents and other paternal
relations irreparably and thus taking
the privilege of complainant innocency
the accused has exploited the
complainant in a very pre-planned way.
The accused is so wicked that he even
furnished a false name in the said
Nursing Home and signed the consent
Register/Paper as BIKASH GAUTAM
concealing his real name BODHISATTA
GAUTAM which fact was unknown to the
innocent complainant until recently and
came to know only in the 2nd week of
February, 1995 when the complainant went
to obtain a certified copy of the
abortion consent paper of the accused.
A copy of said consent paper signed by
the accused in annexed hereto and marked
as Annexure-1.
11. That, believing her self to be the
lawful wife of the accused, the
complainant like a dumb shouldered up
all those hardship since 1989. On
hearing the massage that the accused
would go to Silchar, the complainant on
4th Feb.’95 went down to Dimapur and
visited the accused to take the
complainant permanently with the accused
to Silchar as he was going to Silchar to
join as a Lecturer in a Government
College named CACHAR COLLEGE which both
of them actually waited for. But the
wicked accused forgetting the
consequences of his all fraudulent
activities in total disregards of their
marriage and their relationship refused
to accept the complainant as his wife
and abandoned the complainant asking her
to forget all her dream. Be it further
submitted that the accused’s friends
namely (1) Shri Subrata Datta, (2) Shri
Ranadhir Deb (3) Shri Prasanta Dey and
(4) Shri Pradeep Paul of Dimapur tried a
lot to convince the accused and not to
abandon the complainant in such a cruel
manner, as he had already married the
complainant and cohabited years
together, but all efforts ended in
futility as the accused in reply said
that the giving of vermilion on
complainant’s forehead was pretext of
marriage to over come the past
situations and not at all a complete
marriage and the accused repeatedly said
that he had no option, but to abandon
the complainant as his parents are not
agreeable to accept the complainant as
their daughter-in-law.
12. That, the accused not only induced
the complainant and cohabited with her,
giving her a false assurance of marriage
but also fraudulently gave through
certain marriage ceremony with knowledge
that was not a valid marriage and
thereby dishonestly made the complaint
to believe that she was a lawfully
married wife of the accused. The accused
even committed the offence of
miscarriage by compelling the
complainant to undergo abortion twice
against her free will. The way the
accused exploited the complainant and
abandoned her is nothing but an act of
grave cruelty as the same has caused
serious injury and danger to the
complainant’s health both mentally and
physically, as such, the accused above
named has committed Criminal offences
punishable U/S 312/420/493/496/498-A of
Indian Penal Code."
This complaint was registered as Criminal Case No. 1/95 under Sections 312/420/493/496/498-A, Indian Penal Code and Bodhisattwa Gautam was summoned but he, in the meantime, filed a petition in the Gauhati High Court under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the proceedings initiated on its basis, on the ground that the allegations, taken at their face-value, do not make out any case against him. But the High Court by its judgment and order dated May 12, 1995.dismissed the petition compelling Bodhisattwa Gautam to approach this Court by way of Special Leave Petition. Special Leave Petition (Criminal) No. 2675/95 was filed and was dismissed by us by our order dated October 20, 1995, in which we stated as under :-
"We see no ground to interfere with
the impugned judgment of the High Court.
We dismiss the special leave petition.
Having done so, we further take suo motu
notice to the facts of this case as
narrated in the complainant which has
been read before us. We issue notice to
the petitioner as to why he should not
be asked to pay reasonable maintenance
per month to the respondent during the
pendency of the prosecution proceedings
against him. Mr. A. Bhattacharjee
accepts notice.
List it on 1.12.1995.
Petitioner in person be present in
Court on the next date of hearing.
Notice be also sent to the respondent
along with the copy of this order."
Pursuant to the above order, Shri Bodhisattwa Gautam put in appearance and filed an affidavit in reply in which he denied the allegation made against him in the complaint and stated that the complaint was filed only to harass and humiliate him and, therefore, there was no occasion to direct him to pay any amount as maintenance to the respondent. He also indicated that although he had taken up service in another College, namely, Cachar College, his services had since been terminated. Para 4 of his affidavit in which these facts have been stated is reproduced below :-
"4. That I say that I am not in any
employment now and I am an unemployed
person after my services as a Lecturer
in Cachar College, Silchar, has been
terminated with effect from 16.7.1995 by
a resolution of the Governing Body of
the said College passed in a meeting
held on 14.9.1995. A true copy of the
proceedings of the said meeting of the
Governing Body of Cachar College,
Silchar held on 14.9.1995 is annexed
hereto as Annexure - A1.
The relevant resolution No. 5(A) of the
said meeting of the Governing Body reads
as follows :-
"Resolution No. 5(A):
The Principal placed the leave petitions
of Shri B.Gautam, Lecturer, Deptt. of
Commerce, adding that Shri Gautam
resumed his duties in the College on the
re-opening day of the College after
summer vacation, i.e., on 15th of July,
1995 and at first he sought leave for
twenty one days and the for three years
at a stretch.
The Principal also stated that Shri B.
Gautam was appointed against a lien
vacancy for one year vice Dr. A.
Mazumdar, the one-year lien having
expired on 9.9.1995.
The matter was thoroughly discussed and
it was unanimously resolved that since
Shri B. Gautam’s term of appointment
against lien vacancy had expired on
9.9.1995 and his service was not
confirmed, (he did not complete even one
full year’s service), he cannot be
granted three years’ leave at a stretch
as prayed for by him.
Also resolved that as Shri B. Gautam has
been absent from the College from 16th
of July, 1995 and also the term of his
appointment expired on 9.9.1995, Shri
Gautam’s service as lecturer in the
Deptt. of Commerce in Cachar College,
Silchar be treated as having been
terminated w.e.f. 16th July, 1995.
The Principal be requested to forward
the above resolution to the D.P.I.
Assam, for his kind approval of the
termination of the services of Sri B.
Gautam w.e.f. 16.7.1995."
This resolution along with other
resolutions passed in the said meeting
held on 14.9.1995 were placed before the
meeting of the Governing Body held
subsequently on 11.11.1995 for
confirmation. A true copy of the notice
of meeting to be held on 11.11.1995
containing the agenda of the meeting is
annexed hereto as Annexure - A2.
Now I have been reliably informed that
in the meeting of the Governing Body on
11.11.1995, the aforesaid resolution
terminating my service has been
confirmed. I further state that I have
not received any payment towards my
salary since July, 1995 and after the
termination of my service with effect
from 16.7.1995 no question of my
receiving any salary arises.
In the circumstances I respectfully
submit that no question of burdening me
with the liability of paying maintenance
to the respondent can arise."
The facts set out in the complaint lodged against Bodhisattwa Gautam indicate that there was initially a period of romance during which Bodhisattwa Gautam used to visit the house of Subhra Chakraborty and on one occasion, he told her that he was in love with her and ultimately succeeded, on the basis of his assurances to marry her, in developing sexual relationship with her with the tragic result that Subhra Chakraborty became pregnant. While in that state, she persuaded Gautam to marry her, but he, deferred the proposal on the plea that he had to take his parents’ permission. He, however, agreed to marry her secretly. Consequently, on 20th September, 1993, Bodhisattwa Gautam took her before the God he worshiped and put Vermilion on her forehead and accepted her as his lawful wife. In spite of the secret marriage, he, through his insistence, succeeded in motivating her for an abortion which took place in a clinic at Kohima in October, 1993. Subhra Chakraborty became pregnant second time and at the instance of Bodhisattwa Gautam she had to abort again in April, 1994 in the Carewell Nursing Home at Dimapur where Gautam signed the consent paper and deliberately mentioned himself as Bikash Gautam.
The Gauhati High Court, as already pointed out above, refused to quash the proceeding in Criminal Case No 1/95 pending in the Court of the Judicial Magistrate, Ist Class, Kohima and this Court has upheld the judgment of the Gauhati High Court. The question is whether any further order can be passed in the case and Gautam can be compelled to pay maintenance to Subhra Chakraborty during the pendency of the Criminal Case for which Show Cause Notice has been issued to him?
This Court, as the highest Court of the country, has a variety of jurisdiction. Under Article 32 of the Constitution, it has the jurisdiction to enforce the Fundamental Rights guaranteed by the Constitution by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Fundamental Rights can be enforced even against private bodies and individuals. Even the right to approach the Supreme Court for the enforcement of the Fundamental Rights under Article 32 itself is a Fundamental Right. The jurisdiction enjoyed by this Court under Article 32 is very wide as this Court, while considering a petition for the enforcement of any of the Fundamental Rights guaranteed in Part III of the Constitution, can declare an Act to be ultra vires or beyond the competence of the legislature and has also the power to award compensation for the violation of the Fundamental Rights. See : Rudul Sah vs. State of Bihar : AIR 1983 SC 1086; Peoples’ Union for Democratic Rights (through its Secretary & Anr.) vs. Police Commissioner, Delhi Police HQs. & Anr. : (1989) 4 SCC 730.
For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the Court as the Court can itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited individual. This Court through its various decisions, has already given new dimensions, meaning and purpose to many of the fundamental rights especially the Right to Freedom and Liberty and Right to Life. The Directive Principles of the State Policy, have also been raised by this Court from their static and unenforceable concept to a level as high as that of the fundamental rights.
This Court has, innumerable times, declared that "Right to Life" does not merely mean animal existence but means something more, namely, the right to live with human dignity. (See : Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746; State of Maharashtra vs. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180; and Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & Ors., AIR 1991 SC 101). Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth-living.
Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are Mother, Daughter, Sister and Wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.
Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrating and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.
It is said that present days’ law relating to rape have their origin in 1736 in Britain, when Sir Mathew Hale in his Historia Placitorum Cornea or, in other words, "History of the pleas of the Crown" presented common-law rape doctrines which were immediately noticed to be hostile to the interests of women as one of the requirement was to inform the jury during trial that rape charges were easy to bring but difficult to defend. Consequently, in a tide of law reforms, this requirement was removed. The rule of corroboration which was much stricter in a trial for the offence of rape than for other offences was also largely removed from law.
In India also the rule of "Corroboration of the Prosecutrix" has undergone a change through statutory amendments as also through decisions of this Court.
In State of Himachal Pradesh vs. Raghubir Singh, 1993(2) SCC 622, this Court observed as under :-
"There is no legal compulsion to look
for corroboration of the evidence of the
prosecutrix before recording an order of
conviction. Evidence has to be weighed
and not counted. Conviction can be
recorded on the sole testimony of the
prosecutrix, if her evidence inspires
confidence and there is absence of
circumstances which militate her
veracity. In the present case the
evidence of the prosecutrix is found to
be reliable and trustworthy. No
corroboration was required to be looked
for, though enough was available on the
record. The medical evidence provided
sufficient corroboration."
In State of Karnataka vs. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 = 1992 Suppl. (3) SCC 179, the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board. In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution.
In spite of the decision of this Court that (depending upon the circumstances of the case) corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of "consent" by the Courts who tried the offence. To overcome this difficulty, the legislature intervened and introduced Section 114-A in the Evidence Act by Act No. 43 of 1983 reading as under:-
114-A. Presumption as to absence of
consent in certain prosecutions for
rape.- In a prosecution for rape under
clause (a) or clause (b) or clause (c)
or clause (d) or clause (e) or clause
(g) or sub-section (2) of Section 376 of
the Indian Penal Code (45 of 1860),
where sexual intercourse by the accused
is proved and the question is whether it
was without the consent of the woman
alleged to have been raped and she
states in her evidence before the Court
that she did not consent, the Court
shall presume that she did not consent."
This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. The situation, however, has hardly improved. Conviction rates for rape are still lower than any other major crime and the woman continue to argue even today that in rape cases the victimized women, rather than the rapists, were put on trial. A large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by the doctors, the law enforcement personnel and/or the cross-examining defence attorneys. The fear has to be allayed from the minds of women so that if and when this crime is committed, the victim may promptly report the matter to the police and on a chargesheet being submitted, the trial may proceed speedily without causing any embarrassment to the prosecutrix who may come in the witness box without fear psychosis.
We may, at this stage, refer to a decision of this Court in Delhi Domestic Working Women’s Forum vs. Union of India, 1995 (1) SCC 14, in which Court observed as under :-
"It is rather unfortunate that in recent
times, there has been an increase in
violence against women causing serious
concern. Rape does indeed pose a series
of problems for the criminal justice
system. There are cries for harshest
penalties, but often times such crimes
eclipse the real plight of the victim.
Rape is an experience which shakes the
foundations of the lives of the victims.
For many, its effect is a long-term one,
impairing their capacity for personal
relationships, altering their behaviour
values and generating and less fears. In
addition to the trauma of the rape
itself, victims have had to suffer
further agony during legal proceedings."
This Court further observed as under :-
"The defects in the present system are :
Firstly, complaints are handled roughly
and are not even such attention as is
warranted. The victims, more often than
not, are humiliated by the police. The
victims have invariably found rape
trials a traumatic experience. The
experience of giving evidence in court
has been negative and destructive. The
victims often say, they considered the
ordeal to be even worse than the rape
itself. Undoubtedly, the court
proceedings added to and prolonged the
psychological stress they had had to
suffer as a result of the rape itself.
In this background, it is necessary to
indicate the broad parameters in
assisting the victims of rape.
(1) The complainants of sexual assault
cases should be provided with legal
representation. It is important to have
some one who is well-acquainted with the
criminal justice system. The role of the
victim’s advocate would not only be to
explain to the victim the nature of the
proceedings, to prepare her for the case
and to assist her in the police station
and in court but to provide her with
guidance as to how she might obtain help
of a different nature from other
agencies, for example, mind counselling
or medical assistance. It is important
to secure continuity of assistance by
ensuring that the same person who looked
after the complainant’s interests in the
police station represent her till the
end of the case.
(2) Legal assistance will have to be
provided at the police station since the
victim of sexual assault might very well
be in a distressed state upon arrival at
the police station, the guidance and
support of a lawyer at this stage and
whilst she was being questioned would be
of great assistance to her.
(3) The police should be under a duty
to inform the victim of her right to
representation before any questions were
asked of her and that the police report
should state that the victim was so
informed.
(4) A list of advocates willing to act
in these cases should be kept at the
police station for victims who did not
have a particular lawyer in mind or
whose own lawyer was unavailable.
(5) The advocate shall be appointed by
the court, upon application by the
police at the earliest convenient
movement, but in order to ensure that
victims were questioned without undue
delay, advocates would be authorised to
act at the police station before leave
of the court was sought or obtained.
(6) In all rape trials anonymity of the
victims must be maintained, as far as
necessary.
(7) It is necessary, having regard to
the Directive Principles contained under
Article 38(1) of the Constitution of
India to set up Criminal Injuries
Compensation Board. Rape victims
frequently incur substantial financial
loss. Some, for example, are too
dramatized to continue in employment.
(8) Compensation for victims shall be
awarded by the court on conviction of
the offender and by the Criminal
Injuries Compensation Board whether or
not a conviction has taken place. The
Board will take into account pain,
suffering and shock as well as loss of
earnings due to pregnancy and the
expenses of the child but if this
occurred as a result of the rape.
In the present situation, the third
respondent will have to evolve such
scheme as to wipe out the fears of such
unfortunate victims. Such a scheme shall
be prepared within six months from the
date of this judgment. Thereupon, the
Union of India, will examine the same
and shall take necessary steps for the
implementation of the scheme at the
earliest."
This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women’s Forum, the jurisdiction to pay interim compensation shall be treated to be part of the over all jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life.
Apart from the above, this Court has the inherent jurisdiction to pass any order it consists fit and proper in the interest of justice or to do complete justice between the parties.
Having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisattwa Gautam had married Subhra Chakraborty before the God he worshiped by putting Varmilion on her forehead and accepting her as his wife and also having impregnated her twice resulting in abortion on both the occasions, we, on being prima-facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam shall pay to Subhra Chakraborty a sum of Rs. 1,000/- every month as interim compensation during the pendency of Criminal Case No. 1/95 in the court of Judicial Magistrate, 1st Class, Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed till this date. We may further observe that whatever has been said in this Judgment shall not, in any way, affect or prejudice the Magistrate from deciding the complaint on merits on the basis of the evidence as may be tendered before it and in accordance with law.