The Allahabad High Court has said that having sex before marriage with a major may not be an offence but is unethical, immoral given Indian customs and tradition.
A single-judge bench of Justice Rahul Chaturvedi said this while rejecting the bail application of a man who has been arrested under POCSO Act provisions for having sex with a minor and standing a mute spectator to the minor being gang-raped by three others.
Justice Chaturvedi said, “The conduct of the applicant is highly deplorable and unbecoming of a boyfriend who could not save his girlfriend from these offenders. I’m not inclined to exercise my discretionary power under Section 439 CrPc in favour of the applicant, therefore the prayer for bail of the applicant is rejected.”
In his observations while rejecting the bail application, the judge said: “I am afraid to accept the contentions raised by learned counsel for the applicant on many scores:
1. The moment the applicant submits that the victim is his beloved, It was his binding duty to protect the dignity, honour and reputation of his girlfriend. If a girl is major, then to have sex with her consent is not an offence but certainly it is unethical and immoral and also not in consonance with the established social norms of Indian society.
2. The applicant remained a silent spectator when the co-accused persons brutally sexually assaulted his beloved in front of him and no effort to put a stiff assistance was made by him, so that the soul and body of the victim could be saved from these flesh vultures.
3. The chivalrous boyfriend (the applicant) as per the statement of the victim under section 164 CrPC has taken his girlfriend (the victim) to the police station to lodge the FIR and by doing this he alleged to have performed his duty, qua her girlfriend
“The statements of the victim under Section 161 and 164 CrPC has tried to carve out the applicant from this nefarious offence taking the plea that the victim was his beloved and he’s got every right to have premarital sex with his girlfriend and whatever act applicant was doing was after the tacit consent of the victim, it is the remaining three other co-accused person who are strangers who committed rape with the victim. The applicant is not the member of the gang nor has any association with the court accused persons,” the bench observed.
The counsel for the applicant submitted that the FIR was lodged by the victim herself on February 20, 2021 at 7:33 hours. The incident is said to have taken place on February 19 at 11 hours under Sections 376D, 392, 323, 504, 506 IPC and Section 5/6 of POCSO Act.
According to the FIR, Miss X (15 years) at around 8.00 in the morning went to learn stitching at the stitching centre Myohar and she talked to her boyfriend Raju (the applicant) on phone to meet him. When the victim girl came out from the stitching centre around 11 AM, she went with Raju on his motorcycle to visit Myohar, where they reached a secluded place along the culvert of a local river in a secluded place.
The FIR read, “Despite stiff resistance from the victim, the applicant was establishing physical relations with her. During this period, all of a sudden three persons reached there, abused and beat up the applicant and snatched his mobile. Thereafter, two out of the said three persons quenched their rapacious animal instinct when these both persons performing this lascivious act, they were taking the names of each other as Gulshan and Satyam.”
After his second bail application was rejected by the Kaushambi POCSO special judge, Raju moved the High Court invoking jurisdiction under Section 439 of CrPC. The applicant is in jail since February 20, 2021 in connection with the case under Section 376-D IPC and Section 5/6 of Protection Of Children From Sexual Offences Act 2012.