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Criminal Lawyer: Consent given on account of marriage does not amount to rape in every case; SC.

Supreme Court of India

Justice D Y Chandrachud and Justice Indira Banerjee

The SC { Pramod Suryabhan Pawar v. The State of Maharashtra & Anr. } was considering the assail to judgement of the High Court of Judicature at Bombay, by which, dismissed an application under Section 482 of the Code of Criminal Procedure 19731 . The appellant before the SC sought the quashing of a First Information Report registered against him on 17 May 2016 with the Panvel City Police Station for offences punishable under Sections 376, 417, 504 and 506(2) of the Indian Penal Code and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by the Amendment Act, 2015).

It was the case of the complainant, inter alia, that the appellant would come to meet her and lived with her in November 2009. During his visit, the complainant alleges that she refused to engage in sexual intercourse with the appellant, but “on the promise of marriage he forcibly established corporeal relationships”.

It was held by the SC that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. 

It was further held by the bench that in the context of a promise to marry that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled.

Further, held that where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.

The SC also referred to earlier pronouncement in "Uday v State of Karnataka", in which, the complainant was a college going student when the accused promised to marry her. In the complainant’s statement, she admitted that she was aware that there would be significant opposition from both the complainant’s and accused’s families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused’s promise to marry the complainant was not of immediate relevance to the complainant’s decision to engage in sexual intercourse with the accused, which was motivated by other factors.

The bench summarised the legal position, that is, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. It was held that to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

While quashing the FIR, in present case, the SC held that the allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant’s promise of marriage. Therefore, it was held, even if the facts set out in the complainant’s statements are accepted in totality, no offence under Section 375 of the IPC has occurred. Accordingly, the appeal was allowed by the SC, and the FIR and consequent proceedings were quashed.

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