Citing Manusmriti, Rajasthan High Court Allows Recall Of Prosecutrix In Rape Case After Marriage With Accused; Considers Interest Of Child
Rajasthan High Court allowed application of rape accused to recall the victim and her mother for re-examination in light of changed circumstances of marriage between the accused and the victim as well as a daughter being born out of their wedlock. The bench of Justice Anoop Kumar Dhand held that if the statements of the victim and mother were not recorded again, it would destroy the...
Rajasthan High Court allowed application of rape accused to recall the victim and her mother for re-examination in light of changed circumstances of marriage between the accused and the victim as well as a daughter being born out of their wedlock.
The bench of Justice Anoop Kumar Dhand held that if the statements of the victim and mother were not recorded again, it would destroy the matrimonial life of the victim and the accused, as well as the future of their daughter.
While quoting Manusmriti, the Court held that Courts were not mere abiters of breakdown of marriage, but also guardians of marriage, especially when children were born out of it.
“Verse 1.85 of Yajnavalkya Smriti says that when the matrimonial home fails to protect, the duty devolves upon the King – today, the Court - to act as parens patriae for the woman and children.”
The accused persons were facing trial for rape under IPC and POCSO in which the statements of the victim and her mother were recorded. After recording their statements, one of the accused persons married the victim and a daughter was also born out of their wedlock in 2020.
In light of these changed circumstances, an application under Section 311, CrPC was filed by the accused seeking re-examination of the victim and her mother, which was rejected by the magistrate. Hence, the petition was filed before the Court.
After hearing the contentions, the Court held that statements of the victim and her mother could be recorded against under the changed circumstances, in the best interest of parties and to save their wedlock.
“After marriage of the petitioner with the prosecutrix, if any child has born from their wedlock, then it is the duty of the petitioner to protect both the prosecutrix and the child and they cannot be left unprotected. At present, the trial is still going on and if the prosecutrix is recalled, no prejudice would be caused to the prosecution and to any other person. As such, this Court can invoke the power provided under Section 311 of Cr.P.C for recalling of these witnesses.”
The Court further held that the scope of Section 311, CrPC, was to determine the truth and to render a just decision. It was observed that the power under the provision had to be exercised judiciously and not arbitrarily, because any improper exercise of such power might give undesirable results.
“Undoubtedly, an application under Section 311 of Cr.P.C cannot be allowed only to fill up a lacuna in the case of the prosecution, or of the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the opposite party.”
Accordingly, the petition was allowed and the trial court was directed re-summon the victim and her mother for re-recoding of their statements.
Title: Shankar & Anr. v State of Rajasthan
Citation: 2026 LiveLaw (Raj) 157