Case Of Courtship & Consensual Physical Relation Sans 'False' Promise Of Marriage Doesn't Amount To Rape: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court has recently observed that a promise to marry, whereby two adults engaged in a physical sexual relationship is a case of courtship and love affair, and by no stretch of the imagination would it come within the definition of Section 375 of IPC [Rape].

The Bench of Justice Mohan Lal further ruled that only when there is a case of a false promise made with the purpose of obtaining the consent of a woman for sexual favor, the same amounts to misrepresentation and consent so obtained, cannot exonerate a person from criminal liability for the commission of rape.

The case in brief

Essentially, one Ashok Kumar had moved the Court last year seeking anticipatory bail in a case registered against him for rape as it was alleged that he made sexual relations with the victim many times after obtaining her consentt under the misconception of fact that he would marry her and therefater, he started ignoring her and also threatened her that she would face dire consequences if she ever tried to call him.

Earlier, in July 2021, he was granted interim bail by the High Corut with the directions that he would appear before the Investigating Officer and shall not contact with any prosecution witness.

However, in September 2021, the counsel for complainant/prosecutrix filed an application for cancellation/revocation of interim bail granted to him on the ground that he was continuously harassing and threatening the prosecutrix after the grant of bail.

It was also alleged that the applicant/accused came at the residence of the prosecutrix and threatened her of dire consequences and pressurized her and other family members to withdraw the FIR.

Court's observations 

The Court persued the contents of the FIR lodged against the bail applicant and noted that there was not an iota of whisper that applicant/accused had made false promise or the applicant/accused had engaged in sexual relations with the victim on the basis of the false promise.

"There is also no allegation in FIR that when applicant/accused promised to marry the complainant/victim, it was done in bad faith or with intention to deceive her. From the contents of FIR, it appears that there is a failure on the part of applicant/accused to fulfill his promise of marriage made in the year 2017 which he could not fulfill in 2021," the Court further noted.

Further, the Court observed that when there was no allegation in the FIR that the promise made by the accused was false, the physical relationship of the accused with the victim does not amount to offence of rape within the meaning of Section 375 of IPC.

The Court also took into account significant rulings of the Supreme Court on when 'False promise of marriage amounts to rape' including J&K High Court's ruling in the case of Tanveer Iqbal vs State and others 2018 (2) Crimes (HC) 264, wherein it was observed thus:

"...when there is a long duration of consensual physical relation between the two under the pretext or promise that the accused will marry her but now backed out and it has not been alleged even by the prosecutrix that false promise of marriage was made for establishing physical relation, it is thus simply a case of courtship and consensual physical relation between the two grownup which even did not end up tying nuptial knot is not a case of commission of rape."

Against this backdrop, having regard to the facts of the case, the Court held that there was no false promise to marriage made by the Applicant-accsued to complainant/prosecutrix in the instant case.

"Contents of FIR demonstrates that applicant/accused though has agreed to marry the prosecutrix and both of them were involved in physical sexual relations and it is thus simply a case of courtship and consensual physical relation which in my considered view does not amount to commission of rape," the Court further remarked.

Consequently, the anticipatory bail granted to applicant/accused in July 2021 was made absolute subject to the conditions that applicant/accused, if required by the investigating agency, shall appear before the Investigating Officer during the course of investigation and shall not threaten or intimidate any prosecution witnesses.

Case title - Ashok Kumar v. Union Territory of Jammu and Kashmir

Case citation: 2022 LiveLaw (JKL) 6

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