HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Writ No. 928/2018

Mona Jain D/o Shri Dharmendra Jain, aged about 26 years, B/c

Jain, R/o Flat No. 503, Elegant Apartment, Panchsheel, Police

Station Christanganj, Ajmer.

----Petitioner

Versus

1.

State Of Rajasthan Through PP

2.

Khwaja Zafar Chishty S/o Sayed Farooq Ahmed, R/o

6/252, Hyderabad House, Near Pannigaran Chowk, Police

Station, Dargah, Ajmer.

----Respondents

For Petitioner(s)

:

Mr. Peush Nag

For Respondent(s)

:

Mr. Sudesh Saini PP

Mr. Rajendra Gautam for

Mr. Gurpreet Singh Sodhi

HON'BLE MR. JUSTICE G R MOOLCHANDANI

Order

30/01/2019

1.

This S.B. Criminal Writ Petition is directed against the

orders dated 12.5.2017 and 10.7.2018 passed by the court of

Special Additional Chief Judicial Magistrate (PCPNDT Act Cases),

Ajmer in Criminal Case No. 214/2016 with a prayer to direct the

trial court to take cognizance for the offence punishable under

Section 376 of IPC as well and commit the case to the court of

Sessions accordingly.

2.

It has been contended by learned counsel for the

petitioner that learned court below has not taken cognizance for

the offence under Section 376 of IPC and as per the definition of

(2 of 4)

[CRLW-928/2018]

‘rape’ it was also committed against the prosecutrix, she was

allured to marry with an assurance that respondent was a

divorced person and a valid marriage certificate was obtained,

which was subsequently found forged and action against the

respondent has been taken for the forgery, in the circumstances,

learned court below has erred in not taking cognizance for the

offence punishable under Section 376 of IPC and learned court

below be directed to take cognizance for the offence punishable

under Section 376 of IPC, as well.

Learned Public Prosecutor has submitted that there

appears no error in the findings of the court below since a major

lady had gone of her own accord with the accused respondent and

solemnized her marriage, knowing well all the consequences, and

consensual sexual intercourse cannot be termed to be an offence

of ‘rape’ and the contentions to the effect are unfounded.

3.

Heard and perused the material and gone through the

statements of the prosecutrix recorded under Section 164 of CrPC,

relevant portions of the statements are being quoted, which have

been uttered by witness Smt. Mona Jain wife of Zafar Chishty,

aged 23 years being housewife, on 12.2.2016 :-

“Zafar Chishty ne july 2015 me apna Gym ‘Gold Gym’ ke naam se shuru kiya,

jab usne apna Gold Gym Shuru Kiya us dauran main Jaipur me job ke liye

chali gai thi, Zafar Chishty mujh se milne ke liye Jaipur ata hai, wahan mujhe

dhamki deta ki main us se shadi kar loon anyatha woh atmhatya kar lega,

maine kuchh din ka uss se samay manga or 19 July 2015 ko main Zafar

Chishty ke saath Bombai gai, Bombai me usne mujhe apni pahli patni ka talak

nama jo dinank 20.07.15 ka tha dikhaya, mujhe uski pahli shadi ki jankari

(3 of 4)

[CRLW-928/2018]

uske mail se hui thi, usne mere poochhne par mujhe bataya ki uski shadi ek

vidhwa ladki se jabardasti karwa di gai thi, jiske pahle se ek ladka tha, main

uske saath khush nahi hun, main apni pahli patni se talak lena chahta hun,

usne mujhe talak nama dikhaya, tab maine us se muslim riti-riwaz se

shadi ki”

She has further stated that “mere paas Zafar Chishty

ke pita ka 12 navambar 2015 ko phone aya ki ya to pachas lakh rupaye loan

ke de anyatha Zafar Chishty tujhe chhor kar chala jayega or tu kuchh nahi kar

payegi, main sharirik va mansik roop se pareshan ho gai thi isliye

maine Zafar Chishty se talak lena hi sahi mana, 19 navambar 2015 ko

Zafar Chishty ek dusra talak nama dinank 18/11/2015 ka apni pahli patni ka

lekar mere ghar aya, or usne hamse mafi mangi or mujhe apne saath chalne

ke liye kaha, mai uske sath jane ko taiyar hui, lekin yah sab ki wahan mujhe

pareshan nahi karega, thane me kahne ke liye kaha phir main apne pitaji ko

lekar Zafar k