26-Yrs Old Woman Grown Up To Understand Informal Relationship: Calcutta High Court Sets Aside Rape Conviction For Alleged False Promise To Marry

The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta observed:

“No doubt it is morally reprehensible for the appellant to desert the victim lady with whom he had entered into an informal marriage after she had become pregnant. But moral indignation cannot take the place of legal proof that the cohabitation of the parties was on the basis of a dishonest representation of the appellant...The circumstances clearly indicate that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was in love, not because he promised to marry her, but because she also desired it.”

The prosecution case was that appellant was in intimate association with the victim and had cohabited with her on the false promise to marry. It was also alleged that the victim became pregnant and gave birth to a female child but the appellant did not marry her despite giving assurance and drove her away when she was six months’ pregnant.

Being convicted under section 376/417 of IPC, the appellant approached the High Court.

The petitioner contended that if for the sake of argument, it is accepted there was a sexual intercourse between them then it ought to be treated as consensual as the victim was a fully grown up lady and had given her consent to such physical relations for a long period till she conceived. Hence, no case of forcible rape was proved.

It was further submitted that earlier similar allegation was levelled against the appellant and on the basis of such allegation and a full-fledged trial was conducted which acquitted the appellant of the charges levelled against him.

The counsel for the State argued that earlier case was disposed of on the basis of compromise between the parties. Thereafter, appellant again gave assurance to marry and resided as husband and wife. However, the appellant did not marry the victim, it was contended.

The court observed that in the statement recorded before the magistrate, the victim stated that she is 26 years old. It observed,

“If the girl was above 18 years of age on the date of her physical relationship and the sexual intercourse took place with her consent, the appellant cannot be held guilty of rape.”

The court further held that it also appears from the evidence of victim lady that on many occasions they had physical relationship at her residence as well as that of the appellant. “If that be so, then it would seem to be a voluntary affair between them. In that event it is difficult to hold that the offence of rape is made out.”

The court pointed:

“In her examination-in-chief, the victim stated the appellant told her that he would marry her. In fact, an informal marriage had been entered into and the appellant had put vermillion on her forehead. They continued to cohabit as husband and wife. Only after birth of child appellant did not enter into a legal marriage and drive her away. These circumstances do not establish a case of false promise at the inception of their relationship...the prosecutrix was a grown up lady aged about 26 years. She was in intimacy with the appellant. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could.”

The court observed that the parties cohabited under an informal arrangement and subsequently the appellant refused to formalise the relationship which resulted in the institution of the criminal case. Therefore, the circumstances did not persuade the Court to hold that cohabitation was on the basis of dishonest representation.

Accordingly, the court set aside the impugned judgement and order of the trial court and directed that appellant shall be set at liberty forthwith.

Case Title: Binod Banik v. The State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 52

Coram: Justice Joymalya Bagchi and Justice Ajay Kumar Gupta

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