• Can it be considered as a rape

I am Rami reddy from andhrapradesh, I am 40 years old married in 2007 and now with 2 kids staying happily with my family. 
 I have two brothers both are mentally retarded by birth, my first brother got married in 1998 and my second brother got married in 1999, while I was a engineering student ,my second brother's wife name Sunitha her date of birth is july 4th 1984
during 2004 time frame I had a physical relationship with my Second Brother's Wife for Few days who was 20 at that point of time , and later I moved on on my Job pune ,maharastra and moved with my job.During that time she gave a Birth to the Boy and everyone in the family were happy that both the brothers were having kids .she is 21 years old when she gave birth to the boy.
 I got married in 2007 and all my family members were present including my brothers wife,and I was moving along with my life, recently my Mother in law expired in 2014, after my mother in laws death my second brother's wife called on phone and told me that I am the biological father of her kid and her husband is impotent, since its already been several years and the kid is around 15 years of age and studying 10th standard.i didn't respond anything and not sure how to respond also.so I kept silent
 I moved to USA in 2012 and staying here till now, now my second brothers wife is telling me that she will file cases on me and spoil my future as I didn't bend down to her demands of property distribution which was in the name of my Maternal Grandfather[Mother's Father] he has written a property will that after his death the property should go to his wife and my mother is the only daughter of my maternal grandfather ,she gets the entire property.since my Mom is very much alive and healthy, I told her after my Mom's generation we will divide equally , but now she is blackmailing me that she will tell everyone about the biological son and spoil my future if i don't give my moms property , are there any legal remedies you can suggest me,and what kind of risks I have when I visit india in december 2019 , had I known that I am the biological father before my marriage I would have done justice to her,she was very much next to me in my marriage and never uttered a word about her son, I have two kids now with my wife and we are a happy family. can you please advice me on how to handle this situation ? is there any legal issues that I can face ?? she along with her father and sister are blackmailing me that once I come to India they will file cases like 'RAPE' case on me and ruin my life and my family. can you please advice on my next steps ?
 Can she file a 'RAPE' case on me that I raped her 18 Years ago ? how can i prove that the relationship that was 18 years ago was a mutual consensual relation ship ? if proved I am the Biological father I am ready to pay the expenses and share the ancestral property with my biological son . can you guide me what are my next steps ?
Asked 6 months ago in Criminal Law
Religion: Hindu

9 answers received in 1 day.

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15 Answers

1. she can file a RAPE case,

2. to defend yourself, you have to prove that the relationship was not perforce rather it was a mutual relationship,

3. if you are the biological father of the kid, then he can claim a share in your property,

4. to safeguard yourself, you can file a police complaint against her about extortion, blackmailing, etc

5. you can also settle the issues amicably involving your family, friends, etc.

6. If not today then tomorrow, everyone has to know, so take a step now to stop routine harassment,

 

 

 

Suneel Moudgil
Advocate, Panipat
2372 Answers
6 Consultations

4.7 on 5.0

Record their threats 

 

it was consensual sex and no case of rape is made out 

 

the fact that she was silent for all these years shows it was consensual sex 

 

file NC with local police station regarding threats received from your sister in law and her family members 

 

 

no need to bow down to pressure tactics 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

This was a consensual act and that too it took place long ago. 

Therefore it cannot be considered as rape nor with the the proof of DNA test you cannot be held as her biological father to the child. 

They cannot proceed legally against you. 

No case is maintainable especially at this belated stage. 

You can ask them to proceed and inform them that you will challenge her allegations properly in court of law. 

You can also tilt the plate by a counter allegation stating that she had extra marital affairs with someone because her husband was impotent whereas for the purpose of extortion she is into this blackmail. 

You can even issue a legal notice warning her with legal consequences if she continues to harass you this way. 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

1. Since your brother's wife was not a minor during your physical relationship with her in 1984 and moreover, why did she not object all these years, only proves that it was a consensual sex between you and her.

2.  Based on the above, she can't file a rape case against you as it's time barred and so far she has not raised her voice.

3.  Through DNA test, the father of the child can be found out.

4.   You can convince her that you will be dividing the property equally, after your mother's lifetime, and giving your brother's wife equal share.

Shashidhar S. Sastry
Advocate, Bangalore
4356 Answers
258 Consultations

5.0 on 5.0

Absolutely no legal issues are involved. It was consensual sex and adultery is no more a crime after judgment of SC. However, child is born from you though illegitimate he have equal share with your legitimate children in you ancestral property but not in your self acquired property. Apart from share in your ancestral property no legal implications arise, civil or criminal.

Advice: Assure her she will get what is due to her son, you can as goodwill share something to avoid crises in family.

Ravi Shinde
Advocate, Hyderabad
3153 Answers
42 Consultations

5.0 on 5.0

Dear Client,

a woman can file a rape case even after many years but at the same time she needs to explain the reason for delay and has to prove the same in legally convincing manner. if your sister law really files a case for Rape, then you can file for a defamation case against her and also harassment case. it is difficult to prove it consensual because, in these kind of cases, even if there is a contract between the parties (just say), one can deny during the time of act. you will need to hire a good lawyer if things happen to be proved in the court. medical examinations will be conducted to know if he is your biological child. you can also mention this point of black mailing against her in the court. it will consider the testimony of witnesses, your family members etc in this case who can testify your past relationship with her. 

Anik Miu
Advocate, Bangalore
5374 Answers
58 Consultations

4.9 on 5.0

For the offense of Rape sexual intercourse has to be against the will of the woman. You have not mentioned anywhere whether the same was forceful or not? 

 

However, believing that the same was out of consent the same does not amount to Rape. Filing of a case at this point of time will just hamper your social status and will not lead to any conviction. The advice is being given on the basis of the facts given by you. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

if she files any such false case take anticipatory bail and then you need to contest the same in trial. she needs to prove the same as burden of proof is on her

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

your brother wife is not serving food to him also. She also had affair with someone. 

so it seems that problem is solved. 

 

Her blackmailing is good defense. 

 

You have to go through criminal case and secret coming out open in family 

 

Note - The advice is being given on the basis of the facts given by you, absolutely free of cost irrespective of any charges paid by you to website .

Ankur Goel
Advocate, Bangalore
454 Answers

4.9 on 5.0

DNA test would reveal whether you are biological father of child 

 

you will have to pay his maintenance 

 

you are not liable to pay maintenance to brother wife 

 

her marriage would not be void 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

He is aged 18 years now, hence he is no more a kid.

He is not entitled for any maintenance at this age.

She is not entitled to claim maintenance from you for any reson.

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

  1. A spouse has to live continuously in adultery only than the other spouse can file divorce  and obtain divorce and no question of declaration  of  marriage as void.
  2. You need to pay maintenance of the child, not to his mother.
  3. No court will take cognizance of offence  of rape after 18 years, as there is period of limitation for filing complaint of any offence including which  has long elapsed.
  4. Court cannot force you and child to take DNA test after 18 years as that will create crises for all.

Ravi Shinde
Advocate, Hyderabad
3153 Answers
42 Consultations

5.0 on 5.0

Dear Client,

no. you will not be liable to pay maintenance to your sister in law if adultery is proved. her marriage will not be void but it can be a ground for divorce between your brother and sister in law's if adultery is proved. as the biological father, you will have natural right to care for his illegitimate child. The right to be maintained, however, extends only upto the period of minority. court will consider all the issues to order if you have to pay the maintenance. 

Anik Miu
Advocate, Bangalore
5374 Answers
58 Consultations

4.9 on 5.0

In rape case no. But on civil case if she demands maintenance and the child is yours then yes you need to pay if court orders

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

Supreme court declared that , when  a man and a woman in love live together , is part of the right to life and not a criminal offence, and further live-in relationships is legal in India.

- Further, as per Supreme Court, The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 (rape) of the IPC, i.e. rape charge cannot be invoked in case of consensual sex between two adults.

- Further, you must know the definition of Adultery: The word `adultery’ is defined as consensual sexual relationship between a married woman and an individual other than his/her spouse.

- The Indian Penal Code also recognizes adultery as a crime and a punishable offence. Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

- Further, in such case, the wife shall not be punishable. From the above definition of Adultery, it is clear that there must be witness/proof of sexual relationship between the male and female and only friendship or love is not considered as Adultery.

- However, on 27.09. 2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14.

- Hence, you cannot be involved in any offence for the said relationship , if she filed a compliant before the police , and specially after a long period of incidence , the case will not maintainable. 

Mohammed Shahzad
Advocate, Delhi
10324 Answers
124 Consultations

5.0 on 5.0

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