If A Man's Intention While Making Promise To Marry Is To Deceive A Girl Into Sexual Relations, Her Consent Gets Vitiated: Bombay High Court

When the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive her to convince her to engage in sexual relations, there is a 'misconception of fact' and the same 'vitiates' the girl's consent, the Bombay High Court held recently while upholding the rape conviction of a man, accused of raping a minor.

Single-judge Justice Urmila Joshi-Phalke took note of the contention of the accused, that the victim was having a one-sided love affair and thus on her desire to marry him, they engaged in sexual relations. However, the judge said that his engagement with the victim by promising her for marriage, appears to be not bona fide since beginning as he completely misled her by promising marriage.

"This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded a girl to believe that he is going to marry and obtained her consent for the sexual intercourse under total misconception cannot be treated to be a consent," Justice Joshi-Phalke said in her order pronounced on February 21. 

The judge said, "Where promise to marry is false and intention of maker at the time of making promise itself was not to abide by it but to deceive a girl to convince her to engage in sexual relations, there is a 'misconception of fact' that vitiates girl's 'consent.' It is not merely a case of breach of promise but it is a case only to seduce the false promise was made and the victim was subjected for sexual assault on misconception of fact."

Moreover, the victim who was below sixteen years of age and her consent is not relevant as it is not consent at all, the judge added. 

The bench was hearing an appeal filed by one Rupchand Shende (28) against his conviction under charges of rape and provisions of the Protection Of Children from Sexual Offences (POCSO) Act. He also challenged the ten years sentence imposed on him by a special POCSO court in Bhandara district on September 9, 2022. 

According to the prosecution case, the victim filed a FIR against Shende in 2019 alleging that while she was a working at a fruit juice centre, the accused, who used to visit the centre for purchasing stocks for his own shop, asked for her contact number. When the girl did not pay any heed, he insisted and got her number and subsequently, the duo started speaking. But her mother objected to the same. 

On October 7, 2018, while the girl was returning from work, the accused met her and 'forcefully' took her to a room, where he demanded sexual favour. When the girl refused, he promised to marry her and then they engaged in sexual relationship, multiple times. However, when the girl missed her periods, she asked the accused to marry her but her gave her some pills and continued with his sexual activity. Later on, the girl conceived and requested him to marry her to which the accused Shende told her he cannot marry her and therefore, she lodged the FIR.

Going through the facts of the case, the judge noted that the instant case was not of a 'love affair' between the accused and the victim.

"It is also not the case of the accused that the victim was having any love and affection for him. Though he stated that she has having one sided love affair and though his engagement with the victim to have physical relationship and the defence taken by him that the victim is having one sided love affair, the same itself is sufficient to show his intention. It appears that the intention of the accused, as per the testimony of the victim, right from the beginning was not honest and he kept promising that he will marry her, till she became pregnant," the judge noted. 

This kind of consent obtained by the accused cannot be said to be consent because she was under misconception of fact that the accused intends to marry her and, therefore, she had submitted to sexual intercourse with him, the judge added.

"This fact is apparent from the DNA Report. It is more than clear, that the accused made a false promise that he would marry her, from the fact that no circumstances are brought on record by the accused to show that at the relevant time he was intending to marry her, but the circumstances are such that he could not perform the marriage with her," the bench said. 

Besides the consent, the bench also considered the medical evidence and also the DNA test results, which confirmed that Shende was the father of the girl child born to the victim.

With these observations, the bench dismissed the appeal. 

Appearance:

Advocate VB Gawali appeared for the Appellant.

Addition Public Prosecutor MJ Khan represented the State.

Advocate Mohini Sharma represented the victim.

Case Title: Rupchand Shende vs State of Maharashtra (Criminal Appeal 155 of 2023)

Citation: 2025 LiveLaw (Bom) 72

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