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Synopsis

The Bombay High Court recently granted bail to an ex-husband who was booked for forcefully having sexual intercourse with his ex-wife, along with another man.

Along with the ex-husband, the high court also granted bail to the man with whom the ex-husband allegedly forced the victim to have sexual intercourse.

The single-judge bench of the high court, comprising Justice NJ Jamadar, was hearing a bail application filed by Miraj and Asif, who were booked under Section 376D (Gang Rape) of the Indian Penal Code.

The victim, Miraj's ex-wife, divorced him in March 2022 through a Khulanama. Even after the dissolution of the marriage, the victim and Miraj continued to cohabit with mutual consent.

It was alleged that on 16th August 2022, Miraj forced his ex-wife to have sexual intercourse with him and Asif. Upon her refusal, Miraj forcibly undressed her, and thereafter, both the applicants had forcible sexual intercourse with her.

The victim informed her mother about the incident, and an FIR was registered on 20th August 2022, after a delay of 4 days.

Advocate Srikhant Rathi, appearing for Miraj, argued that considering the location of the alleged occurrence in a densely populated area, only a few houses away from the victim's mother's house, the version of the first informant is inherently improbable.

Rathi pointed out a delay in registering the FIR and argued that the medical examination did not show that the victim had sustained injuries.

He added that the accused were implicated after disputes arose between the parties over the payment of alimony, which was not agreed upon at the time of the dissolution of the marriage.

Additional Public Prosecutor Bapu Vitthalrao Holambe Patil opposed the application, stating that there are clear and categorical allegations of sexual exploitation, and there is no reason to disbelieve the victim's version.

The bench, however, allowed the application, observing that a prima facie case for exercising discretion in favour of the applicants was made out.

“Indeed the allegations are grave in nature. However, in the backdrop of the relations between Miraj and victim, the marital discord and the broad probabilities of the case, a prima facie case for exercise discretion in favour of the applicants can be said to have been made out,” the court said.

The bench said that the investigation was complete and the chargesheet was filed and therefore further custodial interrogation was not required.

Case title: Asif Mohammad Shanif Ansari & Anr vs State of Maharashtra & Anr