Every Case Where A Man Fails To Marry A Woman Despite Promise Of Marriage Not Rape U/S 376 IPC: Gujarat High Court

While quashing a rape FIR registered against a man for allegedly inducing a woman into a physical relationship on a "promise of marriage", the Gujarat High Court recently said that in every case where a man fails to marry a woman despite such a promise would not attract the offence of rape under Section 376 IPC.

The man can be held guilty, the court said, only if its proved that the promise of marriage was given without any intention to honour it, being the sole reason because of which the woman had agreed to a sexual relationship.

Referring to Section 376 IPC a single judge bench of Justice Divyesh A Joshi in its order said, "A cursory perusal of the above provision makes it clear that in the entire provision, there is not a whisper about a person committing rape on a woman being her love interest. Because the word love in itself carries 'consent'".

It said that Section 376(2)(j) pertains to a woman who is incapable of giving consent, which means that it is either a girl of a tender age, not matured enough to understand things and the consequences of the consent being given by her for the proposed act, or a mentally disabled girl/woman.

"Here, in the instant case, at the time of the alleged offence, as per the say of the applicants' counsel, the girl was 19 years old and had already attained the age of majority and was matured enough to understand what is right and what is wrong and what would be the consequences of a particular act being allowed to be done upon her. That apart, looking to the allegations as stated in the complaint, the same do not make out a case under any of the other categories as mentioned in Section 376, requiring the applicant-accused to undergo the ordeal of trial," the court added.

The high court further remarked that just like IPC Section 498A cruelty cases and those under Domestic Violence Act, cases of "consensual sexual relationship being later converted into allegations of rape are rapidly increasing".

The high court then said, "Now the question arises that mere say of a woman of being promised to marry by the accused, can be so believable so as to hold the accused guilty of the offence of rape. The answer is 'No'. In every case where a man fails to marry a woman despite a promise made to her, cannot be held guilty for committing the offence of rape".

The man can be held guilty only if it is proved that the "promise to marry was given with no intention to honour it" and was the only reason due to which the woman agreed to a sexual relationship, the court added.

Background

The high court was hearing a petition moved by a man seeking quashing of a 2019 FIR registered under IPC Sections 376 (rape), 506 (criminal intimidation).

The complainant woman had alleged that the accused entered into a physical relationship with her by giving her a promise to marriage. They continued to meet each other and the accused had called her at his farm and again made a physical relationship with her. Once the complainant realised that she was pregnant, she informed the accused; however he allegedly declined to accept it and backed out from his promise of marriage. She thereafter approached the police for registration of an FIR.

The accused said that even assuming that the allegation pertaining to promise of marriage was true, it would still not amount to rape. He said that the woman–a consensual party–had filed a frivolous complaint. It was submitted that the FIR was filed after a period of six months and after registration of the complaint, the complainant woman delivered a baby boy. However, during the course of investigation, after the DNA samples of the baby boy and the accused was sent to FSL it was found in the report that the accused was not the biological father.

It was further contended that during the pendency of the quashing petition, the complainant had married another man and despite service of notice, she had chosen not to appear, clearly showing that she may not be interested in pursuing the matter further.

The State argued that whether the accused had any intention to deceive the woman or not, is a matter to be appreciated on the basis of evidence which is to be lead only at the time of trial. However, the state's counsel said, looking to the evidence available on record, particularly the DNA report of the FSL and the non-appearance of the complainant, it would be left upto the court to exercise its inherent powers or not.

Findings

The court observed that in a case where a girl who is fully aware of the nature and consequences of the sexual act, gives consent for it based on a promise of marriage, continues the relationship for a long period, then in such cases it becomes "really difficult to determine" whether the reason behind the consent was only the promise of marriage and not a "mutual desire to be together".

Noting that there was a distinction between false promise and a breach of promise, the court said that false promise pertains to a promise which the accused had no intention to fulfil it from the beginning. Meanwhile a breach of promise may happen due to many factors, it said.

Giving an example, the high court said,"Such as if a boy fell in love with someone, he might get involved with another partner, he might be compelled by his family to marry someone else, etc. this doesn't mean that the promise was false from the beginning".

It then observed that the "determining factor" is only the intention of the accused; however the determining factor of the consent–whether it was obtained voluntarily or involuntarily–will depend on the facts of each case.

"The court must consider the evidence and the circumstances in every case before reaching a conclusion, but if the court finds that the prosecutrix was also equally keen, then, in that case, the offence would be condoned," the high court said.

Before concluding the court noted that after the complaint was registered, the woman gave birth to a baby boy which she had claimed to be through the relationship with the accused. It noted that the report on the DNA samples of the accused and the baby boy, suggests that the samples are not matching and the accused is not the biological father.

"After that nothing more remains to be said. Because specific allegation has been made in the complaint that the complainant became pregnant through the relationship with the applicant-accused, however, as per the DNA report of the FSL, the applicant-accused is not a biological father of the son of the complainant, which completely falsifies the case of the prosecution," the court said.

After holistically considering the facts and circumstances and the tenets of law the court was of the view that the man's plea deserved consideration. It went on to allow the man's plea and quashed the FIR as well as all consequential proceedings arising from it.

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