Smearing The Head Of the Prosecutrix With Vermilion

Smearing The Head Of The Prosecutrix With Vermilion Is An Intention To Show That The Person Has Accepted The Other Person As His Spouse: Allahabad High Court

The Allahabad High Court in the matter of Vikki v. State of U.P. & Anr. on 11th August 2021 dismissed the application for quashing of the charge sheet or the summoning order passed by the Magistrate filed by the applicant (Vikki) and observed that act of the applicant to smear head of the prosecutrix with vermilion, which is significant in the Hindu rituals and customs is an intention to show that the person smearing the vermilion has accepted the other person as his spouse.

As per the contents of the FIR, under the garb of contracting marriage, the victim was called to a hotel room where the applicant established physical relationship with her, despite her reluctance and denial, promising her to marry her soon. It is the case of the prosecutrix that the applicant had performed a ceremony, which has a lot of significance under the Indian Tradition and Customs i.e. “mangbharai”. In the name of this ceremony, under a false promise, a sort of consummation of marriage took place, which is itself indicative of applicant holding a false promise of marriage inasmuch as he had no intention of marrying the prosecutrix.

Later, the parents of the applicant refused to marry him with the prosecutrix on the pretext that daughters from their family are married in the family of the prosecutrix and therefore, they would not like to bring a girl from that family, where they have already given their daughters through alliance of marriage.

It is the case of the applicant that there are WhatsApp messages which reflect that it was the victim, who had called him requesting him to call her urgently. Several missed calls were made by the victim and the messages were also delivered, which reflects that in fact it was the victim who was mad for the applicant and not vice versa, therefore, there cannot be a question of any prosecution when a girl is madly in love with a boy and willingly enters into a physical relationship.

The High Court observed that:

  1. A grown-up man is supposed to have knowledge of his family traditions.
  2. Therefore, the day when the applicant made a promise, he knew as per his family tradition, he will not be able to marry the girl with whom he is making a promise to marry for extracting a favour of physical relationship.
  3. The act of the applicant of carrying out ceremony is another proof of the fact that he entered a physical relationship on the solemn promise of entering into a wedlock, whereas from the beginning, the applicant was aware that as per his family traditions and customs, he will not be able to marry the girl in question.
  4. There is no material available on record to show that prosecutrix was deeply in love with the applicant.
  5. The accused can be convicted for rape only if the Court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives.
  6. In the present case, as far as intention and motives are concerned, they will be subject to final scrutiny during the trial, but prima facie, two facts namely, knowledge of family traditions of the applicant and another act of the applicant to smear head of the prosecutrix with vermilion, which is not only significant in the Hindu rituals and customs, but also a lot of significance as an intention to show that the person smearing the vermilion has accepted the other person as his spouse, are taken into consideration.
  7. No case is made out for quashing of the charge sheet or the summoning order.

โ€“ Esha Shah, Paralegal

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