Whether Sexual Intercourse based on promise to marry is rape? Supreme Court answers

When consent of the woman for sexual intercourse is obtained based on promise to marry and it can be proved that the accused did not have any intention to marry the woman, the accused will be guilty of rape under Section 375 of Indian Penal Code..This was reaffirmed by a Supreme Court Bench of Justices L Nageswara Rao and MR Shah..Facts.The prosecution case was as follows. Prosecutrix was the resident of Koni, Bilaspur. Prosecutrix was familiar with the accused (appellant) since 2009 and there was a love affair between them. The appellant had even proposed her for marriage and this fact was within the knowledge of their respective family members..At the time of the incident, accused was posted as Junior Doctor in the government hospital of Maalkharoda while prosecutrix was doing her studies of Pharmacy in Bhilai..The accused expressed his desire to meet the prosecutrix. The prosecutrix, therefore, boarded a train and reached Sakti railway station from where the accused took her on a motorcycle to his house at Maalkharoda..She stayed there for a day and during that period despite the refusal of the prosecutrix, the accused established physical relationship with her on the pretext of marrying her. The accused asked the prosecutrix to leave by saying that he will talk to his parents about their marriage and he will soon marry her. He also asked the prosecutrix not to tell about the incident to anyone and as a result of which the prosecutrix did not disclose the incident to anyone..Subsequently, the prosecutrix repeatedly asked the accused about the marriage and when she did not receive any reply from the accused, she informed the family members of the incident..Thereupon, the family members of the prosecutrix went to the house of accused and informed his family members about the incident whereupon the family members of accused said that the marriage of accused and prosecutrix was the only option available..In the meantime, members of both the families used to visit each other. However, after keeping the prosecutrix and her family members in dark for about two months, the accused married another woman..The prosecutrix then filed a complaint of rape. The accused was tried for offence punishable under Section 376 of IP.C The Sessions Court held the accused guilty after concluding that the prosecutrix gave consent for sexual intercourse on a misrepresentation of fact and the promise by the accused that he would marry the prosecutrix. Therefore, the said consent cannot be said to be a consent. The Sessions Court convicted the accused for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment..The Chhattisgarh High Court dismissed the appeal of the accused against the Sessions Court decision. This led to the present appeal in the Supreme Court..Arguments.Senior Advocate S Nagamuthu appearing for the accused-appellant submitted that while convicting the accused, the courts below did not consider Section 90 of the IPC and Section 114A of the Evidence Act in its true perspective..It was submitted that in the present case the prosecutrix was in love with the accused and she wanted to marry the accused. However, the accused had stated in his 313 statement, that the prosecutrix and her family members were in the knowledge that the marriage of the appellant was already fixed with another woman. Even then the prosecutrix and her family members continued to pressurize the accused to marry the prosecutrix..It is further submitted by Nagamuthu that even if it was assumed that the accused gave promise to the prosecutrix to marry and thereafter the accused did not marry the prosecutrix, the same can be said to be a ‘breach of promise’ and cannot be said to be rape under Section 375 of the IPC..Nagumuthu also drew the attention of the Court to the fact that the prosecutrix later got married to another person..In support of his submissions, Nagamuthu heavily relied upon the following decisions of this Court in Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra [(2019) SCC Online 3100], Tilak Raj v. State of Himachal Pradesh [(2016) 4 SCC 140], Deepak Gulati v. State of Haryana [(2013) 7 SCC 675], Uday v. State of Karnataka [(2003) 4 SCC 46], Deelip Singh v. State of Bihar [(2005) 1 SCC 88], and Shivashankar alias Shiva v. State of Karnataka [(2018) SCC Online SC 3106]..Appearing for the State and the prosecutrix advocates Pranav Sachdeva and Praveen Chaturvedi, submitted that in the present case, from the very beginning, the accused had no intention to marry the prosecutrix. He wanted to marry another woman, Priyanka Soni. Despite the same, he had called the prosecutrix to his residence and had sexual intercourse with her by giving her false promise that he would marry her..It was submitted that the prosecutrix, in fact, initially objected to sexual intercourse. However, as the accused gave assurance and promise that he would marry her, the prosecutrix gave her consent. It was submitted that as the consent was obtained by the accused on a misconception of fact and therefore the same cannot be said to be a consent even considering Section 90 of the IPC..The respondents also pointed to the conduct of the accused which is born out from the record that when the parents of the accused and the prosecutrix subsequently met to fix the marriage, instead of remaining present the accused ran away..It was submitted that in the facts and circumstances of the case, it had been established and proved beyond doubt that the consent given by the prosecutrix was on a misconception of fact and therefore, the same cannot be said to be a consent. Therefore, the appellant-accused was rightly convicted under Section 376 of the IPC..Judgment.The Court at the outset considered various judgments rendered by the Supreme Court in relation to Sections 375 and 90 of IPC..This included Kaini Rajan v. State of Kerala [(2013) 9 SCC 113], Deepak Gulati v. State of Haryana [(2013) 7 SCC 675], Yedla Srinivasa Rao v. State of AP [(2006) 11 SCC 615] and State of UP v Naushad [(2013) 16 SCC 651]..The Court concluded that the sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse based on such promise, the consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC..In such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC..In the instant case, the Court noted that what emerged from the evidence on record was that from the very beginning the accused never intended to marry the prosecutrix. He gave false promise to the prosecutrix to marry her and on such false promise he had physical relation with the prosecutrix. The prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her..Her consent was, thus, based upon a misconception of fact as per Section 90 of IPC. Such consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC..The Court also distinguished the case from the various judgments which were relied upon by the appellant’s counsel..Regarding the contention of the appellant-accused that the prosecutrix and his family members were in the knowledge that his marriage was already fixed with Priyanka Soni and even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, the Court held that the said story was not proved..“….considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant’s marriage is fixed with another lady – Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation.”.Even considering Section 114A of the Indian Evidence Act there is a presumption and the Court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her, the Court said..Further, regarding the argument that the prosecutrix and the accused subsequently got married to other persons, the Court made it clear that the same is no ground to acquit the appellant-accused for the offence punishable under Section 376 of the IPC..The Court, therefore, upheld the conviction of the accused. It, however, reduced the sentence to 7 years imprisonment from 10 years..Read the judgment below.