Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a bail matter, P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

The prosecution case was that on a day in the month of April 2021, on a false promise of marriage, the accused took the de facto complainant to a hotel and committed rape on her without her consent.

Hence, it was alleged that the accused committed the offence.

Petitioner’s counsel submitted that even if the entire allegations were accepted the offences under Section 376 IPC was not made out.

The counsel submitted that even according to the de facto complainant, she was married at the time of the alleged incident. In such circumstances, the allegation that the rape was committed promising marriage will not stand.

Further, the counsel took the Court through the Judgment of this Court in which it was stated that promise to marry made to married women is not legally enforceable, offence of rape not attracted.

In view of the above-stated facts, Court stated that the petitioner can be released on bail o stringent conditions.

Bench stated that it is a well-accepted principle that bail is rule and jail is the exception. Supreme Court in Chidambaram P. v. Directorate of Enforcement, (2019) 9 SCC 66, observed that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

High Court while allowing the bail application issued the following directions:

  1. Petitioner shall be released on bail on executing a bond for Rs 50,000 with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
  2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
  3. Petitioner shall not leave India without permission of the jurisdictional Court.
  4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
  5. Petitioner shall appear before the Investigating Officer on all Mondays at 10 am till the final report is filed.
  6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. [Faris v. State of Kerala, 2022 SCC OnLine Ker 2251, decided on 6-5-2022]

Advocates before the Court:

By Adv. Nireesh Mathew

By Adv. Public Prosecutor Adv. Sanal P. Raj – P.P.

Case BriefsSupreme Court

Supreme Court: In an interesting case, the Division Bench comprising of L. Nageswara Rao and B.R, Gavai, JJ., acquitted the appellant  who raped his own niece and later on married her.

The Court took note of the custom in Tamilnadu which permits the marriage of a girl with her maternal uncle; and the statement of the prosecutrix that she is leading a happy married life with the appellant to hold that,

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.  

The appellant belonged to Valayar community, which is the most backward community in the State of Tamilnadu and was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing raping his niece under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012.

The Trial Court convicted the appellant and sentenced him to ten years rigorous imprisonment, which was upheld by the High Court. Aggrieved thereby, the appellant had approached the Supreme Court.

The appellant submitted that the allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. The appellant  argued, since he has in fact married the prosecutrix and they have two children it would not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

On the contrary, the State opposed the grant of any relief to the appellant contending that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and, second child was born when she was 17 years. The State contested the legality of marriage between the appellant and the prosecutrix and argued that the marriage might only be for the purpose of escaping punishment.

The Court considered the statement of the prosecutrix about her present status where she had categorically stated, “she has two children and they are being taken care of by the appellant and she is leading a happy married life.”

Further, taking note of the custom in Tamilnadu of marriage of a girl with the maternal uncle, the Court held that,

“In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court.” 

With the holding that the Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix, the Court set aside the conviction and sentence of the appellant while granting liberty to the prosecutrix and State to move the Supreme Court for modification of the order if the appellant does not take proper care of the prosecutrix.

As a note of caution, the Court added that in the peculiar facts of the case, it shall not be treated as a precedent.

[K Dhandapani v. State by the Inspector of Police, Cr. A. No.796 of 2022, decided on 09-05-2022]


Appearance by:

For the Appellant: M.P. Parthiban, Advocate

For the State: Dr. Joseph Aristotle S., Advocate


Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsHigh Courts

Madhya Pradesh High Court, Indore: Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

Applicant’s application under Section 438 of the Criminal Procedure Code, 1973 for grant of anticipatory bail as he was apprehending his arrest with regard to an offence punishable under Sections 376(2)(N), 328, 313, 506 and 34 of the Penal Code, 1860.

An FIR was lodged against the applicant alleging that she was friends with the present applicant and came to know him in the year 2016 and used to meet him for the purpose of studies only. However, at one point of time he called her to his room and offered her a drink after which she fell unconscious and committed rape on her.

Once the complainant came to her senses, she saw that her clothes were removed by the applicant and when she asked him about the same, he told her that she has had sexual intercourse with her and had also made a video of the same and if she informed to any other person, he would viral the same.

Subsequently, the applicant kept on committing rape on her with the threat that he would viral her video with him. In the year 2017, it was found that she was pregnant. When the applicant came to know about the pregnancy of the complainant, he forced her to terminate the same and thereafter, he again started having physical relationship with her.

The prosecutrix kept on following the dictates of the present applicant and again got pregnant. The said pregnancy was again aborted. Thereafter, the applicant stopped meeting her and subsequently her father engaged her to a boy, but someone sent the applicant the said information, after which the applicant started harassing her parents, her uncle and her fiancé and his family, by sending messages, photographs and also threatened them that if the prosecutrix marry some other person, he would viral her videos and photographs.

Analysis, Law and Decision


High Court observed that the present matter was not a case where the rape was committed on the pretext of marriage, but a case where the prosecutrix was raped after the applicant spiked her drink and took advantage of her.

As per the case diary and various documents filed by the applicant, the prosecutrix and applicant were having live-in-relationship for quite some time and during the said time, the prosecutrix also got pregnant more than a couple of times and got it terminated under the pressure of the present applicant.

In Court’s opinion, the act of the applicant needed to be viewed seriously as how much stress his acts must have caused to the prosecutrix, her family members as also other persons was not difficult to comprehend.

“…the bane of live-in-relationship is a by-product of Constitutional guarantee as provided under Article 21 of the Constitution of India, engulfing the ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences. Those who wanted to exploit this freedom are quick to embrace it but are totally ignorant that it has its own limitations, and does not confer any right on any of the partners to such relationship.”

High Court held that the applicant fell into the above-stated trap and portrayed himself as a victim and assumed that once he had a relationship with the prosecutrix, he could also force himself upon her for the time to come having her photographs and video clips, etc.

Therefore, the custodial interrogation of the applicant was necessary. [Abhishek v. State of M.P., Misc. Criminal Case No. 15851 of 2022, decided on 12-4-2022]


Advocates before the Court:

For the applicant: Yogesh Kumar Gupta, Advocate

For the respondent: Amit Singh Sisodiya, G.S. and O.P. Solanki, Objector

Op EdsOP. ED.

While a Division Bench of the Delhi High Court is hearing a challenge to the constitutional validity of the law relating to marital rape, this article aspires to examine another aspect of rape: whether consensual sexual intercourse on a false promise to marry would amount to rape. As per the century-and-a-half old Penal Code1, “consent” or the lack of it is the cornerstone to classify copulation as rape. If one exists, the other disappears.2So, this piece examines the dichotomy in the judicial opinions on the subject.

Sections 375 to 3773 IPC define “sexual offences” and prescribe punishment too. As adverted to above, of pivotal importance for attracting these offences is whether there is wilful consent for the act. In the language of Section 3754 itself, the legislature has specified seven descriptive circumstances when the offence of rape occurs. Of course, consent obtained by threat or coercion or under intoxication cannot be considered consent given by free will. As is evident from a bare reading of the above seven circumstances mentioned in the provision, none of them can be considered “consent” by free will.

It was in Uday v. State of Karnataka[1], the Supreme Court had, for the first time, an occasion to consider the question whether consent given by a woman based on a promise to marry by the man would amount to rape. In that case, the woman and the man were in love with each other, and the woman had consented to sexual intercourse. It led to her pregnancy. While acquitting the accused, the Court held that the question whether consent was given on a misconception of fact was to be decided on a case-to-case basis; after examining several judgments of various High Courts, the Court in Uday6 has held:

  1. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code….

While thus holding, the Court has also noted that the issue whether the consent was free or not and the surrounding circumstances of the “consent” have to be examined on a case-to-case basis. The Court, in the end, holds:

25.… In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC7. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception….8

The Court, however, has not answered the question whether “misconception of fact” in Section 90 has to be restricted to circumstances spelt out in Section 375 and whether Section 90, too, applies to circumstances not enumerated in Section 375.9

            Subsequently, in Deelip Singh v. State of Bihar10, the Court has also laid down the test whether at the very inception of his making the promise, the accused held out a false promise to secure the consent. The Court has noted that the phrase “against the will” seemed “to connote that the offending act was done despite resistance and opposition of the woman”.11 The Court has placed reliance on Section 90, and held:

  1. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirement of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person given the consent had given it under fear of injury or misconception of fact and the court should also be satisfied … of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.12

Neither in Uday13 nor in Deelip Singh14 was the consent obtained forcibly. Contrast this with Yedla Srinivasa Rao v. State of A.P.15In that case, the accused had intercourse with the victim forcibly. Then, after impregnating, he pacified her by promising marriage. The conviction was upheld, as the Court held that the intention was not honest from the beginning; he only promised to marry the prosecutrix when she became pregnant. The facts of this case are different to the extent that there was no consent for sexual intercourse; therefore, the circumstance mentioned as “firstly”—against her will—stood satisfied. Coercive element established, the Court ought not have even enquired into the existence of any promise or assurance to marry. It is non sequitur. Respectfully, it is submitted that Court has erred in holding:

  1. In the present case, in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law….16

In Deepak Gulati v. State of Haryana17, the woman consented to sexual intercourse on the understanding that the accused would marry her, though “she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor”. On his conviction, the accused had served over three years of his sentence before the Supreme Court acquitted him. In that context, the Court has held:

  1. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understating the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.18

In Kaini Rajan v. State of Kerala19, the accused was acquitted on a reasonable doubt in the prosecution’s case. The Supreme  Court has observed:

  1. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram20)

In Karthi v. State21, as was in Yedla Srinivasa Rao22, to the first instance of sexual intercourse, there was no consent. But later, the accused silenced the prosecutrix with a promise of marriage. Thereafter, several acts of intercourse took place—with her consent. In that backdrop, the Supreme Court has upheld the conviction for rape. Similarly, in State of U.P. v. Naushad23, the Court placed reliance on Section 90 and held:

  1. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. 

More recently, in Pramod SuryabhanPawar v. State of Maharashtra24, while acquitting the accused, the Supreme Court has summarised the law:

  1. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two proportions 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 women’s decision to engage in the sexual act.

 The law regarding “consent” has been followed in Anurag Soni v. State of Chhattisgarh25. In that case, the consent for sexual intercourse was found to be on “a misconception of fact” as understood under Section 90. From the beginning, as it emerged, the accused had no intention to marry the prosecutrix. While making his promise, the accused knew it to be a false one. In Dhruvaram Murlidhar Sonar v. State of Maharashtra26, while allowing the appeal, the Supreme Court has examined the law on the subject and held:

  1. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by the accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant (sic) had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC27.

Even in Maheshwar Tigga v. State of Jharkhand28, the Supreme Court adhered to the law laid down from Uday29 onwards. But in the facts and circumstances of that case, the Court has held that “the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her….”30 As a result, the accused was acquitted. More recently, in Sonu v. State of U.P.31, the Supreme Court quashed an FIR, on the ground that:

  1. (t)here is no allegation to the effect that the promise to marry was given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR.32

Thus, for almost two decades, the law has consistently been that a consent given for sexual intercourse on a false promise to marry would be a consent given on the “misconception of fact” and hence, does not amount to valid consent under Section 90. In other words, it amounts to rape. The Court, in all the above quoted judgments, has not considered Explanation 2 to Section 375, which reads as under:

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.33

Put plainly, “consent” must unequivocally be for the sexual act, and the basis for the consent is not relevant for the purpose of the section. Further, the word “fact” in Section 90, of which there must be a “misconception”, ought to be of the sexual act, and not some other circumstance or fact. That is, for the offence not to be attracted, the sexual act must be consented to. Indeed, the Court has recognised in KainiRajan34 that “consent” was “an act of reason coupled with deliberation” and that it denotes “an active will in the mind of a person to permit the doing of an act complained of”.35

In our respectful view, if there is free and unequivocal consent for the sexual act—in the absence of any specific legislative mandate—the basis for such free and unequivocal consent, such as a promise to marry, is irrelevant. The intent of the legislature is clear from the second explanation. With utmost respect, when the provision categorically enumerates situations in which consent obtained under either threat or coercion as being no consent, and the section having categorically left out conditional consent, it cannot be said that consent obtained on a promise to marry is not free consent. What is germane to Section 375 is whether there is consent by free will for sexual intercourse, and such consent is not obtained from a girl of less than 18 years of age or such consent is not obtained by threat, coercion or intoxication. When none of these factors are directly attracted, and a consent is given on “promise to marry”, it can hardly be said that such consent is not consent by free will.

For example, in R. v. Flattery36, a nineteen-year-old girl consulted the accused, a doctor, for treatment for an illness. And the accused, on the pretext of giving her surgical treatment, had carnal intercourse. The victim having submitted herself on the genuine belief that she was being treated, the accused was held guilty of rape. Similarly, in R. v. Williams37, when the accused, who was engaged by the victim to give her lessons in singing, had sexual intercourse with the victim on the pretext that he had to perform an operation on her to produce her voice properly. Thus, the victim having submitted herself on this premise but without any intention of having sexual intercourse, the King’s Bench upheld the conviction of rape. In Williams38, the King’s Bench Court placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:

Branson, J. stated the law in the course of the summing up in the present case in accurate terms. He said: “The law has laid it down that where a girl’s consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was a surgical operation.40

In other words, only when the consent is given for an act, which the consent giver is not knowing to be a sexual act, can the offence of rape be attracted. Such a consent would fall within the ambit of “misconception of fact” even under Section 90 IPC. It is settled law that a criminal statute must be interpreted in a strict manner, and, it is submitted, the law laid down by the Supreme Court regarding “the consent for sexual intercourse on a false promise to marry” as attracting the offence of rape would amount to reading words into the statute—words that do not exist.

Recently, two High Courts, while taking a completely contrary stand on the issue, have expressed a need for the legislature to clarify the issue. The Allahabad High Court, in Harshvardhan Yadav v. State of U.P.41, has noted that till the legislature provides for “a clear and specific legal framework where the accused obtained consent for sexual intercourse on the false promise of marriage”, the Court should continue to give protection “to such women who have suffered on account of false promise of marriage”.42 Conversely, the Orissa High Court in G. Achyut Kumar v. State of Odisha43, while hearing an application for bail, has opined that “the automatic extension of provision of Section 90 IPC to determine the effect of a consent under Section 375 deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous”.44

It is submitted that intertwining consent for intercourse with marriage may not reflect the change in societal attitude. In the present day and age, the law recognises a “relationship in the nature of marriage”45 —colloquially called a live-in relationship. It was once frowned upon as morally decadent. O tempora, o mores! So, the interpretation given by the Supreme Court, with marching times and changing social mores, requires a reconsideration. From Uday46 to Sonu47, the law on this aspect has stood like a rock—fossilised, so to say. In an appropriate case, the Supreme Court must revisit the purport of “misconception of fact” in Section 90 for the offence of rape.


*Advocate on Record, Supreme Court of India.

**Advocate on Record, Supreme Court of India. Author can be reached at amitpaioffice@gmail.com.

1Penal Code, 1860.

2This would not apply to “consent” by a girl less than 18 years of age.

3Penal Code, 1860, Ss. 375-377.

4Penal Code, S. 375.

[1](2003) 4 SCC 46.

6(2003) 4 SCC 46, 56-57.

7Penal Code, 1860, S. 90.

8Uday v. State of Karnataka, (2003) 4 SCC 46, 58.

9Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.

10(2005) 1 SCC 88.

11Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.

12Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.

13(2003) 4 SCC 46.

14(2005) 1 SCC 88.

15(2006) 11 SCC 615.

16Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624.

17(2013) 7 SCC 675.

18Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, 682.

19(2013) 9 SCC 113, 118.

20(2000) 7 SCC 224.

21(2013) 12 SCC 710.

22(2006) 11 SCC 615.

23(2013) 16 SCC 651, 658.

24(2019) 9 SCC 608, 620.

25(2019) 13 SCC 1.

26(2019) 18 SCC 191, 202.

27Penal Code, 1860, S. 376.

28(2020) 10 SCC 108.

29(2003) 4 SCC 46.

30Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117,para 20.

312021 SCC OnLine SC 181.

32Sonu v. State of U.P., 2021 SCC OnLine SC 181.

33Penal Code, 1860, Expln. 2 to S. 375.

34(2013) 9 SCC 113.

35KainiRajan v. State of Kerala, (2013) 9 SCC 113, 118.

36(1877) 2 QBD 410.

37(1923) 1 KB 340.

38(1923) 1 KB 340.

39 (1877) 14 Cox, C.C. 8.

40See R. v. Williams, (1923) 1 KB 340, 347.

412021 SCC OnLine All 500.

42Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.

432020 SCC OnLine Ori 417.

44G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.

45See, Protection of Women from Domestic Violence Act, 2005.

46(2003) 4 SCC 46.

472021 SCC OnLine SC 181.

Case BriefsDistrict Court

Court of XXXII Additional Chief Metropolitan Magistrate, Bengaluru: Padmakar Vanakudre, XXXII Addl. CMM, in a case wherein a woman, alleged that she was sexually harassed on the promise to marry, Court found that she was in habit of filing multiple complaints alleging commission of similar offences which is not just a coincidence.

Factual Background

As per the allegations, the Father of the accused had contacted the complainant over the phone and spoke regarding the marriage of his son. The accused met the complainant and said that he would marry the complainant. Thereafter, the accused took the complainant for watching a movie and while during that, the accused forcible touched the private parts of the complainant, hugged and kissed her.

After a few days, the accused sent a message stating, “we cannot proceed” and denied marrying the complainant.

Hence, the accused submitted that she was sexually harassed on promise to marry her and thereby the accused committed an offence punishable under Sections 354-A, 509 and 417 of the Penal Code, 1860.

Analysis and Decision

Court noted that, while stating that the alleged offence occurred in Inox Theater, PW.2 could not state the number of people present in the theatre. Further investigating officer could not produce any material like a movie ticket, etc. to show that the complainant and accused had been to the theatre where the office was alleged and occurred.

Adding to the above, the newspaper in which the advertisement in the matrimonial column was published and seeing which the father of the accused contacted the complainant was also not produced.

Another significant point that created serious doubt in the case of the prosecution was that the incident occurred on 22-6-2019 and the complaint was lodged on 2-7-2019, which created serious doubt in the case of the prosecution.

In the instant case, the complainant did not depose regarding the offence of cheating, and it was not her case that the accused intruded upon her privacy and subjected her to sexual harassment by making a false promise to marry her.

Bench found the accused successfully established that the complainant was in habit of filing similar complaints and the fact that she had made four other complaints making the allegation regarding outrage of modesty, sexual harassment, cheating and rape makes it clear that the accused was not guilty.[State v. Iyer Ramanathan K., CC No. 24888 of 2019, decided on 12-1-2022]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed a petition wherein the petitioner/Advocate filed a petition seeking legal action against Prince Harry Middleton and to direct the United Kingdom Police Cell to take action against him, as despite a promise to marry the petitioner, said promise has not been fulfilled.

Prayer for his arrest was also placed so that no further delay could occur in their marriage.

High Court expressed that the instant petition was nothing but just a day-dreamer’s fantasy about marrying Prince Harry.

The petition mentioned some emails between the petitioner and Prince Harry, in which the person, sending the email stated that he promised to marry soon.

When Court enquired whether the petitioner had ever travelled to the United Kingdom, the reply was negative and petitioner only stated that she had a conversation through social media, where she had even sent messages to Prince Charles that his son Prince Harry was engaged with her.

On perusal of the annexures wherein the attachments of so-called conversations were attached it was noted that the same were not even true copies as the said portion had been deleted/erased.

Further, the Bench expressed that:

It is well-known fact that fake IDs are created on various social media sites like Facebook, Twitter etc. and authenticity of such conversation cannot be relied upon by this Court. There is every possibility that so-called Prince Harry may be sitting in a Cyber Café of a village in Punjab, looking for greener pastures for himself.

Hence, Court found no ground to entertain the present petition and could only show sympathy for the reason that petitioner believed such fake conversation to be true.

In view of the above reasons, present petition was dismissed. [Palwinder Kaur v. Prince Harry Middleton, 2021 SCC OnLine P&H 756, decided on 08-04-2021]


Advocates before the Court:

Ms Palwinder Kaur, Advocate-petitioner in person

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., addressed a matter wherein the appellant challenged the conviction and sentence passed by Additional Sessions Judge for his conviction under Section 417 of Penal Code, 1860.

In the present matter, it has been stated that the appellant was convicted under Section 417 of the Penal Code, 1860.

Prosecutrix while working on the construction site be-friended with the accused and in a short span, they engaged in sexual relations, more than one time.

Further, she alleged that the appellant did not disclose his marital status but presuming, he would marry her, she submitted to his sexual desires on more than one occasion, by the time she learnt that the appellant was married, she was pregnant.

In 1990, prosecutrix lodged a complaint about the offence punishable under Section 376 IPC, pending investigation, prosecutrix delivered a baby girl.

Trial Court upon appreciating the evidence of the prosecutrix, recorded the finding, that it was a consensual act and, thus, acquitted the accused of the offence punishable under Section 376 of the IPC. Trial Judge, however, convicted the accused of the offence punishable under Section 417 of the IPC and sentenced to suffer rigorous imprisonment for six months.

Analysis and Decision

Bench while analysing the facts and circumstances of the case noted that prosecutrix submitted in her testimony that she was living on construction site and be-friended with the accused, whereafter they fell in love with each other.

Further, Court observed that the evidence of the prosecutrix did not suggest that the appellant made a false promise to marry her. Hence, it cannot be said that the appellant lured the prosecutrix to engage in sexual relations with him on the false promise of marrying her.

Question for consideration:

Whether conviction of the accused under Section 417 of the IPC is sustainable?

“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”

In fact prosecutrix’s evidence suggested that she presumed that the appellant was not married and further assumed that he would marry her.

Therefore, the absence of ‘dishonest concealment of fact’, which is an essential ingredient of offence, within the meaning of explanation, appended to Section 415 of IPC, a conviction under Section 417 of IPC is not sustainable.

Lastly, Court concluded by stating that the impugned conviction and sentence by the Additional Sessions Judge be quashed and set aside. [Jagdish Raghunath Mankar v. State of Maharashtra, 2021 SCC OnLine Bom 269, decided on 24-02-2021]


Advocates who appeared before the Court:

Advait M. Sethna appointed advocate with Pravan A. Gohil with Eshaan Saroop for the appellant.

Sharmila Kaushik, APP for the Respondent- State.


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[Section 417 IPC] Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

[Section 415 IPC] Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., allowed pre-arrest bail to the applicant accused of raping a women whom he allegedly met on facebook.

Accused preferred a pre-arrest bail application for offence punishable under Section 376(1) of the Penal Code, 1860.

Petitioner and informant were in a relationship for 1.5 years and petitioner had promised to marry the informant.

When informant had reached Kozikhode for purchasing some clothes for their marriage, she was taken to a lodge, where both petitioner and informant stayed together and informant was subjected to penetrative sexual abuse.

Petitioner also took some pictures of the informant and threatened with the same to obtain a sum of Rs 40,000 and gold chain.

Decision

Bench noted that according to the de facto complainant, she was in a relationship with the petitioner.

Court relied on the Supreme Court case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra [2019 (1) KHC 403] wherein it was held that there is a distinction between rape and consensual sex.

Bench stated in the present matter that the question to be considered is:

Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust?

“…former is not rape but the latter will fall within the ambit of cheating and deception.”

Distinction between mere breach of a promise and not fulfilling a false promise

Further Court also observed that,

if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to be given under a misconception of fact.

Thus, in view of the above, Court’s opinion was that the custodial interrogation of the petitioner was not necessitous for an effective investigation.

Hence, the present application was allowed with certain conditions. [Shanil v. State of Kerala, 2020 SCC OnLine Ker 2625 , decided on 06-07-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bhakru, J. while disposing of the petition upheld the decision of the trial court on finding no infirmity in its decision.

The present petitioner sought leave to appeal against the Judgment passed by Additional Sessions Judge.

Background

FIR was lodged pursuant to a complaint filed by Ms ‘P’ and the proceedings for the same commenced under Section 376, Penal Code, 1860. Ms ‘P’ stated that she had developed a friendship with the accused in the year 2013 and over a span of two years the same transformed into a love affair. She had been meeting the accused regularly and he had promised to marry her.

On one occasion, the accused had invited Ms ‘P’ to his house to meet his mother and later, the respondent bolted the door and raped her despite her resistance. However, he had also promised to marry her and had asked her not to disclose the said incident. Further, the allegations placed by Ms ‘P’ were that the respondent had taken her to a hotel and had thereafter, raped her. Although he had promised to marry her, he had resiled from his promise.

After the above incidents, Ms ‘P’ approached the police statement and got her statement recorded, though she declined to get an internal medical examination.

Court’s Observation and Analysis

Fact that the respondent established a physical relationship cannot be disputed. Ms ‘P’ checked into the hotel with the respondent and checked out from the same next morning, clearly shows that they both had booked the hotel for physical intimacy.

Trial Court rightly observed that the only question to be considered was whether Ms P had consented for the physical relationship under a false promise of marriage.

High Court noted that accused had evinced his intention to marry Ms ‘P’ more than two years before the alleged incident of the accused establishing a physical relationship with her. Further, the Court stated that, Ms P’s testimony that she had objected to the accused touching her obscenely but had yielded on him promising marriage, is difficult to accept.

The only reservation of the High Court to the conclusion of trial court was that the implicit assumption that the accused was not on trial for not marrying Ms P. The accused was not trial for not marrying Ms P, but on an allegation of committing the offence of rape.

Another significant noting of the High Court was that,

“It is important to bear in mind that two consenting adults establishing a physical relationship, is not crime. Jilting a lover, however abhorrent that it may seem to some, is also not an offence punishable under the Penal Code, 1860.”

Prosecutrix in the present case claims that her consent was not voluntary but was obtained by inducing her on the pretext of a promise to marry. Plainly, this is not established in this case. Prosceutrix had three months after the first alleged incident of rape, voluntarily checked into a hotel with the accused. Clearly, this was a voluntary act; there is no merit in the contention that this act was induced by a promise of marriage.

Additionally, in view of the above, the Court also added that,

Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time.

In the present case, prosecutrix appears to have used the allegation of inducement of a physical relationship on the promise of marriage, to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed. In her testimony, she had explained that she had done so because the accused had contacted her and again reiterated his promise to get married to her.

Thus the petition in the above terms is accordingly dismissed. [State v. Sandeep, 2019 SCC OnLine Del 10332, decided on 25-09-2019]

Case BriefsHigh Courts

Kerala High Court: It is now from the last decade or two that it has become a matter of common parlance that women  lodge complaint against their paramour for raping on the pretext of promise to marry. Recently, the Kerala High Court too had a similar case to decide upon.  The accused was convicted under Section 376, IPC by the Sessions Court against which he had appealed in the High Court.

The case of prosecution was such that under a false promise of marriage, the accused enticed the prosecutrix, took her to a hotel at Ernakulam where he subjected her to sexual intercourse at a room with force, and thereafter again on three occasions at her residence also he subjected the lady to sexual intercourse on a promise that he would marry her. The stand of the appellant/accused remained that it was a false case registered against him in despair of love.

The Court examined the evidence on both the sides and came to the conclusion that whatever transpired between the prosecutrix and accused was purely consensual. It was clear that the lady and accused had intercourse many times at her residence. To this, the Court noted that the prosecutrix was a well-educated lady aged 27 years having a degree in Engineering and, it is unbelievable that such an educated lady could be deceived on a promise to marry on so many occasions. It held that it was a clear case of consent and a conviction under Section 376 IPC was not at all possible. The accused was accordingly acquitted. [Ratheesh v. State of Kerala, 2017 SCC OnLine Ker 200 , decided on 13.01.2017]