Is failure to marry after consensual sex, rape? Supreme Court answers

The Supreme Court has yet again sought to elucidate the law on whether failure to marry after consensual sex would constitute the offence of rape under Section 375 of the Indian Penal Code (IPC)..The judgment was delivered by a Bench of Justices AK Sikri and S Abdul Nazeer in an appeal against a judgment of the Bombay High Court..The High Court had dismissed an application filed by the accused-appellant under Section 482 of the Code of Criminal Procedure seeking quashing of the FIR registered for offence of rape punishable under Section 376(2)(b) of the Indian Penal Code..By way of background, the accused-appellant was serving as a medical officer, Primary Health Centre at Toranmal. The complainant was working as an Assistant Nurse at the same establishment. The complainant’s husband passed away in 1997. During this time, the appellant informed her that there were differences between him and his wife, and therefore, he is planning to divorce his wife. Further, the appellant informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage..Therefore, she started living with the appellant at his Government quarters. The FIR further stated that she had fallen in love with the appellant and that she needed a companion as she is a widow. Therefore, they started living together, as if they were husband and wife. They resided some time at her house and some time at the house of the appellant. The appellant acted as if he has married her and maintained a physical relationship with her. However, he failed to marry her as promised..When things stood thus, his brother, i.e accused No. 2, claims to have married her. Thereafter, in the year 2000, complainant received the information from the co-accused about the marriage of the appellant with some other woman. Therefore, she filed a complaint of rape against the appellant..After the completion of the investigation, the investigating agency filed a final report in June 2001. The appellant filed the criminal application under Section 482 before the High Court for quashing the FIR and the charge sheet but the same was dismissed by the High Court promoting the present appeal..The Court in its judgment proceeded to explain the scope of “consent” under Section 375..An inference as to consent can be drawn if only based on evidence or probabilities of the case, the Court held. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of, the Bench observed..“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 also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.”.The court thereafter proceeded to address the question of consensual sex and rape in the context of “promise to marry”..At the outset, the Court said that in such cases, it 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. The latter falls within the ambit of cheating or deception, the Court held..Further, the Court also sought to make a distinction between a mere breach of a promise and not fulfilling a false promise (to marry)..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 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..However, if the accused 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 of the IPC, the Court ruled..In the instant case, the Court noted the complainant’s version that she had fallen in love with the appellant and that she needed a companion as she was a widow..They were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other’s company. It is also clear that they had been living as such for quite some time together, the Court observed..When she came to know that the appellant had married some other woman, she lodged the complaint. It was not her case that the complainant has forcibly raped her. Thus, she had taken a conscious decision after active application of mind to the things that had happened. It was not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind..Even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant, the Court ruled..“We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.”.It, therefore, allowed the appeal and set aside the decision of the Bombay High Court..Senior Advocate Jayant Sud appeared for the appellant while advocate Deepa M Kulkarni and Nishant R Katneshwarkar represented the State of Maharashtra..Read the judgment below.