'Complainant Was Conscious Of The Fact That Marriage May Not Take Place': Madras High Court Dismisses Rape Charges On False Promise To Marry

The Madras High Court on Monday ruled that an offence of rape under Section 376 IPC on the pretext of false promise to marry is not made out when the complainant willingly engages in the sexual act knowing that the intended marriage may not take place at all on account of her own marital status. The Court was adjudicating upon a petition filed under Section 482 CrPC seeking the quashing of the FIR instituted against the accused.

Justice M. Nirmal Kumar observed,

"The 2nd respondent (complainant) did not resist the overtures of the 1 st petitioner (accused) and, in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of her marital status and continued to have sexual relationship on several occasions. In this case, the sexual relationship between them continued for five years which cannot be termed as rape. The facts of the case and the acknowledgment of the 2 nd respondent about the physical relationship between them would not constitute the offence under Section 376 IPC",

Background

In the instant case, both the complainant as well as the accused are practising Advocates in Madras High Court and other courts around Chennai. The complainant had got married to one T.N.Viswanath in the year 2009. Thereafter, the complainant and the accused had met for the first time in April 5, 2015 following which they got into a relationship which lasted until July 2020 for a period of nearly 5 years. However, the complainant was married to T.N Viswanath during the subsistence of her relationship with the accused.  

Observations:

Pursuant to a perusal of the rival submissions, the Court held that a consensual physical relationship between the parties would not constitute an offence of rape under Section 376 of IPC. The Court proceeded to place reliance on a host of Supreme Court judgments and accordingly ruled that whether there was any consent or not is to be ascertained only on careful study of all relevant circumstances.

"Difference between rape and consensual sex has to be seen on the facts of each case. When the complaint sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.", the Court observed.

It was further opined by the Court that pursuant to Section 90 of the IPC, if consent is given by the complainant under a misconception of fact, it is vitiated.

"Consent for the purpose of Section 375 IPC requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on careful study of all relevant circumstances", the Court added further.

Referring to the facts of the case, the Court observed that during the duration of their relationship, the complainant had not shown any resistance or raised any objections against the accused. Opining that the veracity of the complaint is 'highly doubtful', the Court observed further,

"The veracity of the complaint is highly doubtful. No doubt, this Court has to be cautious in quashing the FIR more so when the case is at the stage of investigation"

The Court then proceeded to rule that an offence of rape under Section 376 IPC is not made out because of the following grounds,

i) Complainant is a well-educated woman of 36 years and she is an Advocate

ii) The complainant was married to her husband during the subsistence of her relationship with the accused.

iii) The complainant did not 'show any protest, objection or refusal' when she the accused disclosed his lover and desire to initiate a sexual relationship with her.

iv) It has been admitted by the complainant that she had 'given herself' to the accused believing that he is unmarried and would therefore marry her.

Thus, the Court further opined,

"The 2nd respondent (complainant) clearly in unequivocal terms by her acts and own admission willingly participated in sexual act with the 1st petitioner (accused) not once, but on several occasion over a period more than five years."

It was further held by the Court that an inference as to consent can be drawn based only on evidence or probabilities of the case.

"Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of", the Court added further.

It was also noted by the Court that the complainant had 'sufficient intelligence' to understand the 'significance and moral quality' of the act that she was consenting to which is why she had kept the relationship a secret for a long time.

"The 2nd respondent did not resist the overtures of the 1 st petitioner and, in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of her marital status and continued to have sexual relationship on several occasions. In this case, the sexual relationship between them continued for five years which cannot be termed as rape. The facts of the case and the acknowledgment of the 2 nd respondent about the physical relationship between them would not constitute the offence under Section 376 IPC", the Court further ruled.

Accordingly, the Court quashed the FIR registered against the accused and acquitted him of the offence of rape under Section 376 IPC.

Case Title: D. Santhanam & Priya v. State 

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