Rapid increase in consensual sexual relationships being registered as rape cases: Gujarat High Court

Every sexual relationship where a man fails to marry a woman despite having promised to do so cannot be considered rape, the Gujarat High Court recently held.

Justice Divyesh Joshi lamented that cases of consensual sexual relationships later being converted to rape, are on the rise just like increase in false cases lodged against husband under Section 498A of Indian Penal Code (IPC) for cruelty towards wife.

"Like the cases under the provisions of the Domestic Violence Act and under Section 498(A), the cases of consensual sexual relationship being later converted into allegations of rape are rapidly increasing," the Court stated.

In cases of rape on promise of marriage, a man can be held guilty only if it is proved that the promise to marry was given with no intention to honor the same and that such promise was the only ground on which the woman agreed to have a sexual relationship, the Court underscored.

"Now the question arises that mere say of a woman of being promised to marry by the accused, can be so believable so as to held the accused guilty of the offence of rape. The answer is ‘No’. In every case where a man fails to marry a woman despite a promise made to her, cannot be held guilty for committing the offence of rape. He can only be held guilty if it is proved that the promise to marry was given with no intention to honour it and also that was the only reason due to which the woman agreed to have a sexual relationship", the Court said in its September 19 order.

Hence, it proceeded to quash rape charges against a man.

The Court also observed that when a girl, who is fully aware of the nature and consequences of the sexual act, gives her consent for the same based on a promise of marriage and continues in such relationship for a long period, then it becomes really difficult to determine whether the reason behind such consent was only the promise made by the boy or the mutual desire to be together.

The Court was dealing with a plea in which a man accused of having committed rape had sought quashing of criminal proceedings lodged against him.

His counsel argued the first information report (FIR) itself made it clear that there was a love affair between the accused and the complainant which continued for about one and a half years.

It was also submitted that the complainant voluntarily entered into a physical relationship with the accused.

The prosecution on the other hand countered by saying that the aspect of intention of the accused to deceive the woman is a matter of evidence that can be considered only at the stage of trial.

After considering the arguments, the Court stated that to define rape, it requires a single instance of sexual assault with evident resistance from the victim at the time such assault is attempted.

However, if a woman allows the act to continue for some time and later files an FIR following a dispute, the element of consent comes into play. When consent is present, especially from a woman of legal age (who has attained majority), the case can no longer be classified as rape.

Interestingly, the Court also noted that in this case, there was a specific allegation in the complaint that the complainant-woman had become pregnant through the sexual relationship with the accused.

It, however, found that as per the DNA report of the Forensic Science Laboratory (FSL), the accused was not the biological father of the child.

This finding completely falsified the case of the prosecution, the Court held.

Thus, it allowed the accused man's plea and quashed the criminal proceedings against him.

Advocate RV Acharya appeared for accused.

Additional Public Prosecutor Jay Mehta appeared for the State of Gujarat.

[Read Judgment]