Long-Standing Consensual Adulterous Physical Relationship Doesn't Amount To Rape: Allahabad High Court

A bench of Justice Anish Kumar Gupta observed this while quashing entire criminal proceedings against a man who had been accused of raping a woman on the pretext of a promise to marry her.

The Court noted that both the accused and the alleged victim had a long-standing continuous consensual physical relationship, and there was no element of cheating from the inception, and thus, such relationship would not amount to rape.

The Court considered the fact that the alleged victim was a married woman with two grown-up children who entered into an adulterous physical relationship (with the accused) out of love, lust and infatuation due to the incapacity of her husband for about 12-13 years and during this period she was well aware that she had no capacity of marriage.

Thus, the Court concluded that the allegation that the promise of marriage was made (by the accused), which was dependent on the death of the husband of the prosecutrix, was a lame excuse given by her.

Importantly, the Court also noted that the accused was much younger in age than the prosecutrix and was an employee in the business of the husband of the prosecutrix. Thus, the alleged victim was having “undue influence” over the applicant, whereby she had forced the applicant into physical relations with her.

“…the prosecutrix had allured the applicant herein due to subordination of the applicant, as he was dependent financially on the family of the prosecutrix and due to the aforesaid dependency the prosecutrix had allured and forced the applicant to entered into such a relationship, which was with the clear and categorical consent and will of the prosecutrix, therefore, by no stretch of imagination such relationship would amount to rape within the meaning of Section 375 of the Indian Penal Code,” the Court further remarked as it quashed the case against the accused.

In March 2018, the alleged victim filed an FIR stating that her husband had been suffering from diabetes for the last 15 years, and he introduced her to the applicant, who he claimed would care for her.

Allegedly, the accused, after gaining her trust, promised to marry her once her husband died, and, on this pretext, he repeatedly established a physical relationship with her.

Thereafter, in May 2017, when her husband died, she asked him to get married to her, but he kept avoiding the proposal, and instead, he continued to visit her home and continued his physical intimacy with her.

Subsequently, she learned about the accused's engagement with another lady in December 2017. When she confronted him, he asked her to come to a godown situated at Rampur Doraha and when she reached there, the accused, by putting a countrymade pistol on the head of the informant, forcibly committed rape on her and also prepared a video clipping.

After that, he told her that he would not marry her and if she talked about the incident to anyone else, her video clip would be made public. He also demanded an amount of Rs. 50 Lacs.

During the case investigation, it became clear that there was a financial dispute between the accused and the alleged victim regarding Rs. 1 crore, which the lady's son was to pay to the accused.

It was also discovered that the instant FIR was lodged to avoid the payment of Rs. 1 crore. The informant's son has also admitted that the applicant was working with his father and used to visit his home. Still, he was unaware of any relationship between the applicant and his mother.

The accused moved the High Court seeking quashing of the case, wherein the single judge noted that in the instant case, the alleged victim was a lady of mature age and had two sons of mature age, equivalent to that of the accused.

The Court also noted that the promise of marriage, as alleged in the instant case by the prosecutrix, was of no consequence at all as the prosecutrix was herself incompetent to marry at the time of initiation of such a relationship, as her husband was alive at the relevant point in time.

The Court also factored into account that initially, the Final Report was prepared having categorically found that the call details of both persons did not match the place of occurrence as alleged in the F.I.R. and subsequently, the charge-sheet has been filed without establishing the fact that the parties were present at the place of occurrence and no material has been concluded about non-existence of the financial dispute between the parties, which the witnesses categorically alleged in the first round of investigation.

The Court further observed that in the instant case, no offence of rape is made out against the accused, and the instant FIR had been lodged by the prosecutrix being annoyed with regard to the engagement of the applicant with some other lady, and she was not willing to leave the applicant.

Therefore, the Court added, the subsequent incident of forcible rape had been concocted by the prosecutrix only to lodge the F.I.R., which was not substantiated during the investigation.

In view of this, the entire criminal proceedings were quashed, and the application filed by the accused was allowed.

Appearances

Senior Advocate V.P. Srivastava, assisted by advocates Vijit Saxena and Irfan Hasan, appeared for the applicant.

Advocate Jagdev Singh appeared for the alleged victim

AGA Mohd. Shoaib Khan appeared for the State-respondent.

Case title - Shrey Gupta vs. State Of U.P. And Anr

Case citation:

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