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Lawfarm Team
Asked January 15, 2016

Avoiding false harassment case

  • 1 Answer

I am a 27 year old boy in a relationship with a 25 year old girl. We intend to get married. While my parents are comfortable with the idea and have extended their support, her parents haven’t. We are apprehensive about being entangled in a legal situation and are living in constant fear of being falsely framed by the cops who are her parents’ friends. What steps can we take to avoid such harassment from her family?

Answer 1

In cases such as yours where both the man and the woman have attained not only majority (i.e. you are both above 18 years of age), but are also of legally marriageable age (18 years for women and 21 years for men), the following criminal allegations are most commonly used as means of harassment by family members who are against the marriage:

  • Section 366 of the Indian Penal Code (IPC) which criminalises kidnapping, abducting or inducing woman to compel her to either marry against her will; or force or seduce her to illicit intercourse.
  • Section 375 of the IPC which criminalises rape which is generally understood as a forceful sexual act against the will of the woman.
  • However, the Supreme Court has taken cognizance of the fact that police and family members often misuse these provisions to harass couples and to prevent them from living together. Considering this, the courts through its decisions have established that the statement of the woman will determine whether the criminal case is maintainable or not. In the case of Fiaz Ahmed Ahanger v. State of J&K [2009 (3) R.A.J. 692] the Supreme Court said that a person who has attained majority is deemed by the law to know what is in his or her welfare, and as long as the woman is a major and testifies that she has willingly entered the marital relationship, nobody is allowed to harass, threaten or commit any acts of violence or other unlawful act on the ones being harassed. In fact, the court went ahead and stated that in case the couple or their allies felt insecure, they could apply to the police for protection and the police would have to grant them the same.

    Therefore, it is established in law that the criminal allegations are not maintainable in case the woman establishes the fact that she had consented to the elopement and/or the marriage. However, even before a matter reaches the Court, substantial harassment is faced by the couple and their allies at the stage of questioning and investigation by the police immediately after the police complaint is filed. Recognising this recurring menace, the Centre through Additional Solicitor General Indira Jaising submitted a report in march 2013 stating that : “It is submitted for the consideration of the Supreme Court that a direction be given that before any FIR is lodged under … [the]… IPC in relation to a woman who has attained the age of discretion, the police may be directed to ascertain the wishes of the woman and if she has voluntarily decided to marry a person of her choice, no case under these sections must be recorded on the complaint of the parents.”

    Therefore, in case your partner’s family decides to approach the police, both of you should first try and establish before the police that she had consented to the relationship and the marriage (or the proposed marriage); and hopefully that should prevent the FIR from being lodged or the investigation from being started or continued. However, if the police still go ahead and act on the complaint, you should hire a lawyer and file an application before the High Court under Section 482 of the Criminal Procedure Code (CrPC) which recognizes the inherent powers of the High Court which include the power to quash an FIR or stay further investigation by the police. If the court is satisfied that the decisions relating to the marriage were mutual and that your partner had entered the relationship with full will and meaningful consent, it should hopefully decide in your favour.

    In case the High Court rejects this application, trial court (lower court) has the duty to adjudicate upon the matter after completion of investigation; in which case you may file for anticipatory bail under Section 438 of the CrPC to avoid jail term. Throughout the process of questioning, investigation and adjudication- irrespective of the stage till which the matter reaches, your partner and you must strictly maintain that both of you had willingly got married, or decided to get married; and that the allegations are mere instruments of causing harassment to your family and you by your partner’s family who were unhappy with the decision relating to the marriage.

    While there are not many preventive measures you can take, you should ideally ensure that your partner and you are on the same page as regards your relationship and that she is prepared to assert her informed consent to the same before the police and the court if the need arises.

    Agree Comment 0 Agrees almost 5 years ago

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