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Mumbai Sessions Court: Sexting In A Consensual Relationship Does Not Insult Modesty [READ JUDGMENT]

In State of Maharashtra v. Jignesh Vyas & Anr., the Court stated, “Sending such messages in the premarital stage can provide the feeling that someone is closer to him or her, to understand his/her emotions.”

By: Rashi Jain, SOA National Institute Of law

The Court recently ruled that sending sexually explicit messages to a proposed wife that did not object at the time was not discriminatory under Section 509 of the Indian Penal Code 

Additional Session Judge DD Khoche in his ruling pointed out that the accused had sent the messages to a woman who, at the time, had not objected to them and had stated her desire to marry him.

“Sending such messages in such a premarital period may delight the other one. It may give the happiness, may give the feeling that someone is closer to him and her, to understand their emotions,” the Court opined.

In 2010, Jignesh Chandulal Vyas was charged with offenses under Sections 376 (rape), 509 (outraging modesty), and 420 (cheating) of the Indian Penal Code.

As a matter of background, the woman had met the suspect through a matrimonial site in 2007. She tried to marry him despite opposition from the accused’s mother, who opposed the match. The complainant woman was adamant and moved in with the accused.

Marriage between the accused and the complainant was unable to take place because of disagreements between the two.

After that, she tried to call the accused on his mobile phone, but it was switched off. Through others, she was conveyed that he was out of the office when contacted on the office phone.

She complained about the accused after feeling deceived. The accused reportedly was charged under section 509 of the Indian Penal Code and section 420 of the Indian Penal Code in addition to the Dowry Prohibition Act. It is because he insulted the modesty of a woman.

Subsequently, the charge of rape was added on the ground that the man had a sexual relationship with the woman by giving false assurance of marriage.

The Court ruled that the woman should have conveyed her displeasure to the man when the accused had sent obscene messages to offend the modesty so that the accused wouldn’t repeat the mistake.

“The purpose of it was to put up his expectation before her, to arouse her with a similar feeling of sex, which may give the happiness even to her etc. However, in no way those such SMSs can be said as were sent to insult her modesty, and there is no intention in sending such SMSs. Had there been such intention, the words could have reflected the same,” the order stated.

According to the Court, both parties were initiating the sexual relationship to experience sex before marriage, rather than issuing a coerced relationship.

Based on the evidence, Judge Khoche concluded that the informant chose to engage in such sexual activity but that the promise of marriage was not untrue.

“Even after respecting the emotions of the informant, respecting her fighting for justice for a long period of near about 11 years or more, this Court is of the humble opinion that this is not the case which would show that the offence of rape has been committed by accused,” the order stated.

Additionally, the Court found no evidence of the accused’s intent to make a fake marriage vow. Judge Khoche noticed that the man had been in a relationship with the woman for more than two years and had honored the promise to marry the woman to the best of his ability.

“But it was the quarrel on the ground of stay after marriage, and after that, by getting tired of his indecisiveness and getting surrendered before his mother’s wish and failing to handle and tackle the problem adequately stood before him, he came back. It is certainly not the case of the false promise of marriage, and rather it is the case of his failure to make substantial efforts,” the order said.

Additionally, the Court stated that the two parties appeared to disagree on the subject of post-marriage domicile, as the man’s mother appeared to be averse to the idea of the accused and complainant living separately.

Judge Khoche reasoned that the accused, having been raised by his mother for at least 20-25 years, could not have immediately or vehemently rejected her wishes, having developed feelings of love, affection, and connection with her. In this case, as a young man, the accused may not have been prepared to leave the bride while also feeling obligated to obtain his mother’s consent.

“It is usual practice in Hindu tradition that all members of the family reside together. Even the new bride, who comes after the marriage at her in-­laws house, does not start to stay separately with her husband immediately but follows the tradition as far as possible or at least for a year or some months to stay together within-­laws. Therefore, it is also a tradition in Hindu families that while fixing the marriage, the groom and bride seek the consent of their relatives or at least family members,” Judge Khoche said in the order.

The Court, therefore, acquitted the man of all charges.

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