Bombay High Court Imposes 25K Cost On Complainant Who Admitted To Consenting To Abortion, Quashes Forced Abortion Case

While quashing a rape and causing miscarriage without consent case, the Bombay High Court recently imposed cost of Rs. 25000 on a woman who consented to quashing of the case admitting that she had voluntarily terminated her pregnancy.

A division bench of Justice Anuja Prabhudessai and Justice NR Borkar observed that there is no prima facie case of rape under false promise of marriage as she had been married while having physical relations with the accused. The records indicated that she consented to the termination of pregnancy, the court further noted.

“The Respondent No.2 (complainant) had indulged in sexual relationship with the Petitioner No.1 (accused) during subsistence of her marriage. Hence, the consent is not vitiated due to misconception of fact…termination of pregnancy was with consent of Respondent No.2 and hence, Section 313 of the IPC is not attracted”, the court observed.

The court allowed a writ petition filed by the man accused of committing rape under false promise of marriage, his family members alleged to have compelled the woman to terminate pregnancy, and the doctor who performed the termination.

The petitioners were booked under Sections 313, 323, 376, 504, and 506 of the IPC, as well as Section 5 of the Medical Termination of Pregnancy Act, 1971 (MTP Act).

According to the FIR, in 2017, the complainant, a married woman at the time, was amidst ongoing divorce proceedings. She alleged that accused Sandip Patil had promised to marry her post her divorce and engaged in physical relations under the guise of marriage. This continued even after her divorce, but he ultimately refused to marry the complainant, as per the FIR. Patil along with his four family members was accused of forcibly taking her to medical facilities, pressuring her to terminate her pregnancy.

They filed the present writ petition seeking to quash the FIR filed against them. The complainant filed an affidavit consenting to quash the FIR.

The court emphasized that while serious offences cannot be quashed solely on the basis of compromise, when the allegations do not disclose cognizable offence the court should not hesitate to quash the proceedings. The court reiterated that its decision should be guided by the basic ingredients of the alleged offences and the totality of the circumstances.

The court took note of the settlement arrived at between the parties, observing that the complainant, through her affidavit, had consented to quashing the FIR. The affidavit asserted that the relationship was consensual, and the termination of the pregnancy was a conscious decision made by her due to her marital status and her desire to move forward with her life. The court also considered her current marital status and the potential implications of the case on her family life.

The court noted that the statement of Dr. Vijay Karale, who terminated the complainant’s first pregnancy, indicated that the termination occurred with the consent of both the complainant and Patil. The records also revealed that the termination of the second pregnancy at Dr. Premil Pujar's facility in Karnataka was done with the complainant's consent.

Dr. Pujar was accused of terminating the complainant’s second pregnancy beyond 20 weeks without her consent. However, from the hospital records, the court observed that at the time of termination, the pregnancy was 19 weeks and 6 days, under the permissible limit given in Section 3(2) of the MTP Act, 1971. It noted that the woman had consent to the termination, and thus offence under Section 313 of the IPC was not made out.

As the complainant was married to another person during the subsistence of the physical relationship with Patil, her consent is not vitiated due to misconception of fact that he would marry her, the court said. Consensual physical relations between adults do not equate to rape under Section 375 of the IPC, the court added.

Thus, the court concluded that the allegations, even if considered in their entirety, did not disclose any offence of a serious and heinous nature.

Further, considering the settled life of the complainant and the potential harm that prolonged legal proceedings might cause to her family life, the court decided to quash the entire case.

The court also directed the complainant to pay costs of Rs. 25,000/- to be deposited to the Tata Memorial Hospital, Mumbai.

Advocate Yogesh Patil represented the Petitioners.

APP SV Gavand represented the State.

Advocates Pankaj Thakur and Sarfaraj Shaikh represented the complainant.

Case no. – Criminal Writ Petition No. 3058 of 2023

Case Title – Sandip Sundarrao Patil and Ors. v. State of Maharashtra and Anr.

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