If a fully grown up lady had consensual sex with a person for long time, it is promiscuity on her part and not an act induced by misconception of fact; Delhi HC [Read Judgment]

Delhi High Court has recently held that if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.

The Court was hearing an appeal against judgment dated 12.08.2015 of Addl. Sessions Judge, Delhi in Sessions Case No. 36/15 by which Appellant Rohit Tiwari was convicted for committing offence under Section 376 IPC and sentenced to undergo RI for ten years with fine of Rs.1.5 Lacs in default to undergo simple imprisonment for one year. The High Court has acquitted the Accused.

Fact

In her Court statement the prosecutrix deposed that she had been residing separately from her husband for the last 17 years. About four years ago she came to know that household goods are being sold in the go down of accused at cheap price. She started buying goods from his go down. During the course of time, she and the accused became friends and accused started visiting her house. She deposed that accused told her that he is unmarried and is residing alone at Delhi in her maternal aunt’s house. He took her to his maternal aunt’s house where she met his maternal aunt and his sister in law. She further deposed that on 12.12.2012 accused came to her house with his maternal aunt and sister in law. They suggested to her that she should marry the accused. She told them that she is already married to which maternal aunt of the accused asked her to obtain divorce from her husband. On the same day they went to Mehandipur Balaji and spent the night in Shiv Dham Ashram where sexual relations were established. She gave financial assistance to the accused to the tune of Rs. 3 Lacs. On 10.06.2013 they went to Mahakaleshwar Temple, Ujjain. After returning from the temple she filed a petition for mutual divorce from her husband. Accused continued to have sexual intercourse with her. On 01.11.2013 accused again came to her house and established physical relations with her. She further deposed that on 23.11.2013 when she visited the native village of the accused she found that accused was already married. He was having a child and person he introduced as his sister in law was in fact wife of the accused. In the cross examination she admitted that she had established physical relations with the accused twice before the marriage proposal was made to her. She also admitted that they have sexual relations in the hotel at Mehendipur Balaji.

It is not in dispute that complainant was 34 years of age while accused was 32 years at that time. Admitted position is that both the prosecutrix and the appellant were well acquainted with each other and had friendly relations. Even prior to the proposal for marriage on 12.12.12 they had physical relation with each other at her house and accused also used to sleep in her house where her son and mother used to be present

Allowing the Appeal Justice Sunita Gupta has held as follows;

“No cogent evidence has emerged on record to show that the physical relations were established with the prosecutirx on the false promise or assurance of marriage. Where was the compulsion for the prosecutrix to have physical relationship repeatedly without ensuring that the appellant and his family members were willing to perform marriage with her? She was mature enough to fully understand as to what was happening between the two. There is nothing in her evidence to demonstrate that she was incapable of understanding the nature and implications of the acts which she consented to. Her consent for physical relationship (if any) was an act of conscious reason. If a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact. 'X' is not believed to allow the appellant to have physical relations repeatedly without first ensuring authenticity of the alleged promise to marriage particularly when they both were married”.

Read the Judgment here.