AN (UN)HAPPY MARRIED LIFE.By Adv. Vikram Singh Brar

Happily ever after? Well I have a client who barely 5 months into his marriage is considering filing a divorce application and when asked why, his answer was plain and simple:

“all she ever wanted was my money”

A bit hard to believe at first because I was aware of the love and bond that they had shared for each other, but as I studied his case I knew this was not just a breakdown of marriage but an attempt to extort money.

So this is not just a divorce application that I am talking about, my client has been made an accused of having committed cruelty against his wife under Section 85 of BNS, 2023 and has been further accused of having committed acts of sexual assault on one of his wife’s relative who happens to be a minor, therefore, attracting the provisions of POCSO (Protection of Children from Sexual Offences) Act, 2012.

I am writing this article out of a personal experience and it will help you in understanding the institute of marriage being brought down to shambles primarily due to the increasing rate of false rape cases against men and their possible legal and societal ramifications.

Statistics by National Crime Records Bureau (NCRB) show that about 74% of rape cases under Section 376 IPC result in acquittals. Studies have shown that out of these, 40% cases are filed by the girl’s family after the couple had eloped to marry. Further 30% cases are filed by women who allege that intercourse took place following false promise of marriage. http://timesofindia.indiatimes.com/articleshow/69366657.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

74% of them result in acquittal as per the Times of India Report reproduced above.

LET THAT SINK IN!

Circumstantial evidence against the victim? Or tampering of evidence by the accused? This can be debatable and is a matter of judicial interrogation but the number of acquittals in concerning.

There are an ample amount of laws that come to the aid of women who have been the victim of sexual assault/Rape and to name a few we have Chapter 5 of the Bhartiya Nyaya Sanhita, 2023 which talks about offences against women and children, we have the POSH (The Prevention of Sexual Harassment at Workplace) Act, 2013,  the Domestic Violence Act, the POCSO (Protection of children from sexual offences) Act, 2012 etc.

The case that I am dealing with has been registered under the provisions of the POCSO Act i.e. Protection of Children from Sexual Assault, which basically had been enacted to penalize the barbaric acts of sexual assault against children under the age of 18 years.

When we hear of the word POCSO we are naturally taken back because we know the legal and social repercussions of an offence having been registered under POCSO and the apprehension of a person accused with respect to an offence under the POCSO Act, gets further backed by the wordings of Section 29 of the said Act which states that the fact that if an accused is being prosecuted under the aforesaid act, the presumption of his having committed the said offence is in affirmative unless the accused establishes his case otherwise.

The contours of the POCSO Act are very dangerous for the accused especially when see the corresponding punishment attached to its violations. Quite rightly so because the act targets the offences committed against children under the age of 18 years. The said dangers are further amplified for the accused as the law makes things worse by way of having Section 29 in place. Let me reproduce what the said section states as under:

29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

Now the question that naturally sprang to my mind was whether the prosecution is completely absolved of its duty to prove the allegations against the accused beyond reasonable doubt? Well, much to my satisfaction it is not so.

Recently the Punjab and Haryana high court in the case of Virender v. State of Haryana and another (CRA-D-7-2022) has pointed out that if the prosecuting agency fails to establish the basic statutory contours of sexual assault allegations against the accused by adducing reliable evidence, then the investigating agency cannot reap benefits of Section 29 and the onus cannot be entirely thrown upon the accuse to prove his case to the hilt. It is not the intention of the legislature to throw the entire onus upon the accused to establish a case in his favour when the prosecution seems to be doing nothing in establishing the said allegations of sexual assault.

We need to understand that an accused is deemed innocent until he has been proved guilty by adducing necessary evidence which supports the case of the prosecuting agencies.

What the Hon’ble High Court has laid down by way of delivering the said judgment is that you cannot point fingers at the accused and argue that he committed sexual assault against a child when the basic evidence for example: statements of the victim and its glaring contradictions, medico-legal reports not pointing towards any hymen rupture, statements of witnesses with respect to kidnapping of the child having not been recorded, all point to the fact that the accused was never privy to the said occurrence.

Interestingly, sometimes the reverse is also true, when men have actually committed the said offences against children, but then have either won over the investigating agencies or the witnesses to depose in their favour before the court of law.

It’s a crazy circus out there my friend.

In a nutshell the prosecution cannot take advantage from the provision of Section 29 of the POCSO Act without, in the first place, having reasonably establishing the guilt of the accused, by adducing reliable evidence.

I am in full consonance with the well-reasoned order passed by the Hon’ble Punjab and Haryana High Court in the case that I have mentioned above, wherein they have come to the aid of the accused who has been wrongfully accused of having committed the said offence, as there is not even an iota of material which could have raised at least a presumption of the said offence having been committed under the provisions of the POCSO Act, 2012.

What are the legal ramifications of it? Well do you have an idea about the pending cases in courts today? Well as of December 2023, we have roughly 5 Crore cases that are pending before the Hon’ble Courts awaiting their disposal and such fake cases add to the list.

Interestingly the Hon’ble Allahabad High Court in the case of Shivam Kumar Pal Vs. State of Uttar Pradesh, imposed a cost of Rs. 10,000/- on a woman who admittedly lodged a First Information Report (FIR) against 4 men falsely accusing them of committing the offences of rape, and unnatural sex against her.

Well to be honest with you, that doesn’t really compensate the amount of societal trauma the man must have went through as a consequence of such false case but the order was nevertheless well appreciated by the masses.

In another case, The Bombay High Court on October 15, 2024 while granting bail to a man, booked for allegedly sexually assaulting his own minor daughter, observed that there is every possibility of the daughter implicating her father in a false case at the behest of her mother, since the parents have locked horns in a separate matrimonial dispute. X vs State of Maharashtra (Bail Application 1649 of 2024)

Recently a court in Uttar Pradesh's Bareilly district convicted a woman under Section 195 IPC (Giving or fabricating false evidence) for making false accusations in court against one Ajay Kumar of rape charges in the year 2018.

Additional District Judge Gyanendra Tripathi sentenced the woman to 4 years, 6 months, and 8 days (1,653 days) in prison, matching the duration for which the man (accused) had to remain behind bars due to the false accusation. Additionally, the woman has been fined around ₹5,88,822, which will be paid to the accused. 

You see, in the backdrop of increasing false cases having being registered against men by certain crooked elements of the society, such an observation further solidifies the plight of men who continue to be entangled in false sexual assault, rape cases.

The reason that I believe is forthcoming behind the mushrooming of such incidents is the criminal intent to extort money from reasonable and economically well-placed men of the society into the unsatiated demands of women who see the legislation, which had initially been enacted for their welfare, as a tool to blackmail their counterpart.

There is an apparent need to revamp the statutory provisions especially the ones which deal with crime against women, so that the intent of the legislation can be properly and effectively implemented.