Sex After Obtaining Consent By False Promise To Marry Is Rape, Reiterates SC [Read Judgment]

The bench comprising Justice L. Nageswara Rao and Justice MR Shah, in a criminal appeal (Anurag Soni vs. State of Chhattisgarh), referred to many judgments on the subject and restated the legal position. It said:

"If it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

The prosecution case was that the prosecutrix (a pharmacy student) and the accused (a junior Doctor) were in love affair. The accused established physical relation with her on the pretext of marrying her. After that, he told her that he would talk his parents about their marriage and he would soon marry with her. The prosecutrix repeatedly asked from the accused about the marriage and when she did not receive any reply from the accused, she informed the incident to her parents. Though talks about marriage between prosecutrix and the accused happened between their families, and they planned their marriage on a particular day, the accused in the meanwhile, performed marriage with another girl. The prosecutrix made the complaint and the rape case was charged against the accused. The Sessions Court convicted him and sentenced him to undergo 10 years rigorous imprisonment. The High Court dismissed the appeal.

Taking note of the evidence on record, the bench observed:

"The prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC"

The accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with another girl, even then, the prosecutrix and her family members continued to pressurize the accused to marry the prosecutrix. The bench said that he has not proved this allegation.

"It is not believable that despite having knowledge that that appellant's marriage is fixed with another lady, she and her family members would continue to pressurize the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant's promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. "

Upholding the conviction, the bench said:

"The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception. "

Finally, the counsel for the accused made a plea that both the accused and prosecutrix is is married (not with each other), and thus the accused may not be convicted. Responding to this, the bench said:

"Merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him."

Upholding the conviction, the bench reduced the sentence to seven years rigorous imprisonment.

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