Simple promise to marry not “misconception of fact” under Section 90 IPC: Gauhati High Court

The Gauhati High Court on Friday observed that a mere promise to marry will not give rise to “misconception of fact” under Section 90 of the Indian Penal Code [Raktim Saikia and anr. vs. State of Assam and anr.].Justice Parthivjyoti Saikia was hearing a matter where the petitioner sought setting aside of orders by lower courts holding him guilty of rape and kidnapping of a 20-year-old girl. "The law is very clear that a simple promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, IPC," the Court held. Section 90 of the IPC explains when a 'consent is known to be given under fear or misconception'. The petitioner was accused by the family of the girl of kidnapping and raping her on the pretext of marriage. The two had eloped and were living together. The police filed the chargesheet in the case against the petitioner and his paternal uncle under Sections 419 (punishment for cheating by personation) and 366 (kidnapping, abducting or inducing woman to compel her marriage) of the IPC. An additional chargesheet further inserted Section 376 (punishment for rape) of the IPC against the accused. During trial, the girl admitted she was in love with the petitioner and that one day he had proposed to marry her. According to her, the couple subsequently went to the house of their paternal uncle who was to arrange the marriage. She stated that she was not interested in marriage whereupon she was beaten up and forcefully had vermillion put on her forehead.Citing several decisions of the top court including Uday vs. State of Karnataka, Dilip Singh Alias Dilip Kumar vs. State of Bihar and Deepak Gulati vs. State of Haryana, reported, Justice Saikia held that a mere promise to marry will not be a “misconception of fact” within the meaning of Section 90 of the IPC. It noted that these precedents laid down that only if it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying the woman to whom the promise was made and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 IPC.Merely being in breach of a promise is different from not fulfilling a false promise, the Court held.Further, the Court noted that in the instant case the evidence of the girl even during trial had "failed to inspire confidence to the effect that she was ever kidnapped and later on raped" by the petitioner. "In the instant case, the victim claimed that the present petitioner proposed to her to marry and she had accepted the proposal. That is why, she had gone with him. The victim girl had already attained sufficient maturity at the relevant time of occurrence. Now, this Court has reason to hold that the victim girl was a consenting party to the act of the present petitioner," the Court ruled.It, therefore, concluded that the trial court and the sessions court had erroneously convicted the accused."Both the Courts below has committed serious error while appreciating the evidence available in the record and arrived at erroneous findings. The judgments passed by the trial court as well as the appellate court are not sustainable in law," the Court said.This, the plea was allowed and the accused was acquitted.Advocates K Rahman and SK Roy appeared for the petitioners while advocate MB Baruah was the Legal Aid Counsel. [Read judgment]