New Delhi | A senior Army doctor will now be prosecuted for the offence of rape following a Delhi court order after a protracted legal battle by an Afghan woman who came to India in 2009 and claimed the accused had married her in Kabul while concealing his first marriage.
The woman, now 32, claimed before a Delhi court in her complaint that the army Major, during his posting at Indira Gandhi Hospital in Kabul, married her as per Islamic practices in 2006 when she was just 16 years and two months of age. She contended that either she should be given the status of his "legitimate wife" or he should be prosecuted.
The complaint said that after marriage they resided as husband and wife in an accommodation rented by him in the Afghanistan capital.
"After a couple of weeks ... (the officer) on the pretext of going to India for some work related to employment left for India and did not return to Kabul and eventually after telling (her)... that he was already married with two children in India thereafter even stopped taking calls from her or her relatives", the complaint said.
It said that in the circumstances, she came to India and filed a Domestic Violence Case against him and later a complaint case.
She went to various judicial forums including the Delhi High Court and back to trial courts seeking redressal and this led to a recent order passed by a magisterial court that the army doctor be tried for offence of rape under 376 of the IPC.
"Perusal of the record reveals that the complainant had alleged that the accused had entered into sexual intercourse with her....the accused had admitted the subsistence of his marriage with some other person at the time of the alleged offence," Metropolitan Magistrate Sonika said in her order on the woman's complaint case.
The order noted that the complainant had placed on record the CD containing the video of the marriage solemnisation function between her and the accused and its genuineness was established by FSL examination.
The magistrate said, "Thus, this court agrees with the contention raised by Counsel for the complainant and is of opinion that the accused should also be tried for offence under Section 376 IPC in addition to other offences. As the offence under Section 376 IPC is exclusively triable by the court of Session, the present case needs to be committed".
The trial court listed the matter for scrutiny of documents on April 25.
During the hearing of the case, which was filed in 2016, advocates Ravindra S Garia and Sobat Singh Rawat contended that there is sufficient material on record to frame against the accused under IPC sections 494 (marrying again during the lifetime of spouse), 495 (concealment of former marriage), 496 (fraudulently undergoing the ceremony of marriage) of IPC and additionally, and 376 as the accused had committed sexual intercourse with the complainant who gave her consent under the impression that the accused is her husband.
Advocate Ravi Mehta, appearing for the officer, had raised the preliminary objection on the jurisdiction of the court to deal with the case.
He contended that the alleged offence was committed in Afghanistan and the complainant was aware that the accused may be found in Pithoragarh, Uttarakhand, wherein the complainant had filed a complaint case but the same was not proceeded by her.
Mehta further argued that the accused should be discharged in the present case by the court.
The trial court, however, referred to the 2017 order of the Delhi High Court in Lalitha Lakshmanan on the applicability of section 188 CrPC (offences committed outside India).
"Thus, for an offence committed by a citizen of India outside India, the court where the accused has been found will have the territorial jurisdiction to try the offence.
"In the present case, the accused has appeared in the present court on the issuance of summons, thus, in view of the aforesaid case law, this court has a jurisdiction to deal in the present case,” the magistrate said in its order dated April 11.
In another case related to domestic violence, the trial court had on September 11, 2009, ordered payment of maintenance of Rs. 5000 per month and Rs. 3000 rent for alternative accommodation to the woman.
On July 22, 2011, the Ministry of Defence passed an order saying that on the complaint of the woman, a court of inquiry was held to investigate the allegations against the officer and it has prima facie found his involvement in the "act of entering into plural marriage" during the subsistence of his first marriage.
The woman in her complaint said that in 2006, when she was around 15 years of age, she was working as an interpreter at Indira Gandhi Hospital, Kabul, and the officer was working as a doctor at the hospital.
She claimed that the officer, representing himself to be unmarried, approached her family with a proposal to marry her. She said that the family did not agree initially but when he persisted and even converted to Islam for the marriage, her family agreed.
The marriage ceremony was duly video recorded and the video recording, which on the orders of the trial court was forensically examined by the Central Forensic Science Laboratory and was confirmed to be genuine.