Sex On Basis Of "Genuine Promise" To Marry That Didn't Fructify Not Rape: Delhi High Court

Justice Subramonium Prasad observed,

"If it is found that the promise of marriage was genuine and that the marriage failed to fructify due to external circumstances, then the promise cannot be said to be false, and consent as per Section 90 IPC is not vitiated."

The facts of the case are that the petitioner and the prosecutrix were engaged and fixed to get married to each other. However, due to some problems at the end of the prosecutrix's family, the marriage was postponed. Later on, due to some arguments between the prosecutrix and the petitioner, the marriage could not take place. The prosecutrix then filed a complaint against the petitioner under Section 376(2)(n) IPC against the Petitioner.

At the stage of trial, Additional Sessions Judge framed charges against the Petitioner for offences under Section 376(2)(n) Indian Penal Code. Aggrieved by the same the petitioner approached High Court.

Petitioner submitted that he and and the prosecutrix were involved in a serious relationship and that physical relations between the two had never taken place. He stated that despite the incompatibility between the two, the Petitioner was in love with the prosecutrix and intended to settle down with her. It was his case that this is not a case of false promise to marriage because they had also got engaged, it is a case of a relationship that ended on bad terms.

He submitted that the prosecutrix constantly fought with the Petitioner and taunted him about his profession as well as his financial capacity. Further, he claimed that the prosecutrix insisted on the wedding ceremony being held at a venue which was too expensive for the Petitioner to finance, and due to this, the marriage between the two was put off which led to the parents of the Petitioners being forced to face a very embarrassing position.

One important claim made by the petitioner was that the prosecutrix also threatened his family to file false cases of rape and suicide against them if they didn't get him married to her. Resultantly, they filed an FIR against her and later came to know that she had already filed an FIR against them.

Coming to the order passed by ASJ, the petitioner said that the court has failed to apply its mind on the matter and has mechanically framed charges against the Petitioner under Section 376(2)(n) IPC.

He stated that the allegations against the Petitioner are prima facie fabricated and that the Trial Court has failed to take the same into account while discerning that there was sufficient ground to proceed against the Petitioner.

Assistant Public Prosecutor submitted that a statement of the prosecutrix under Section 164 Cr.P.C. had been recorded and the allegations in the FIR were corroborated. She further submitted that raids had been repeatedly taken place at the residence of the Petitioner and he was never found at the available address. She stated that the Petitioner did not join investigation initially, and that it was only after the Court granted anticipatory bail to the Petitioner that he joined investigation.

The Court noted that Trial Court must exercise its judicial mind to the facts of the case before arriving at the conclusion that there is sufficient ground for proceeding against the accused.

"The Ld. Trial Court must exercise its judicial mind to the facts of the case before arriving at the conclusion that there is sufficient ground for proceeding against the accused. This exercise must be undertaken so as to ensure that an individual does not have to be put through the rigours of the criminal judicial system for no fault of their own."

The Court also examined the difference between false promise of marriage and a breach of promise to marry. Court said that in the latter, sexual relations are initiated on the premise that the two individuals will marry at a later point of time. However, in the former, sexual relations take place without any intention of marrying at all and the consent that is obtained for the said relations to take place is vitiated by way of misconception of fact.

It was observed that in order to arrive at the conclusion that sexual relations were coerced, it is necessary to examine that whether at the stage of rendering a promise to marry, it was done with the intention of not keeping the promise and, therefore, was false at the inception itself.

"The FIR as well as the Status Report stipulate that the Petitioner and the prosecutrix were in a long-term relationship and even a roka(engagement) had taken place. Pictures of the engagement ceremony have also been produced before this Court. The FIR further states that a wedding ceremony was supposed to take place and that it was only at the instance of the prosecutrix that the marriage was postponed. The FIR goes on to state that thereafter, arguments began to take place between the prosecutrix and the Petitioner. Further, the prosecutrix started facing resistance from the Petitioner's family who were against the marriage and that this led to the breaking off of the relationship between the Petitioner and the prosecutrix. The Section 164 CrPC statement of the prosecutrix reveals that it took the Petitioner three months to convince the prosecutrix's parents to allow her to marry him," the Court said.

It was noted that the two were in a long term relationship and therefore ingredients of Section 90 (Consent known to be given under fear or misconception) of Indian Penal Code are not attracted.

"Even an engagement ceremony had taken place between the two and the same was attended by all family members, which indicates that the Petitioner did indeed intend to marry the prosecutrix. Just because the relationship ended on hostile terms, it cannot be said there was no intention of the Petitioner to marry the prosecutrix in the first place. Flowing from this, this Court is of the opinion that the consent so accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear," the Court said.

Lastly, the Bench said that the lower court order suffers from legal infirmities, as it fails to accord any reasons to substantiate as to how there is sufficient material to proceed against the Petitioner under Section 376(2)(n) IPC.

"The said Order has merely recorded the submission of the Ld. APP therein that there is sufficient material on record and has proceeded at the behest of the prosecutor, without providing any reasons to justify its stand. As has been stated above, the Ld. Trial Court is not a mere post office and must apply its mind to the facts of the case to arrive at the conclusion as to whether a prima facie case is made out against the accused that would warrant charges to be framed against them. The impugned Order dated 08.03.2021 has evidently failed to perform its duty and has rendered a mechanical order on charge without sifting or weighing the evidence before it," the Court said.

In view of the above discussion the court deemed it fit to set aside the order of the Additional Sessions Judge. Therefore, the court quashed charges of rape against the petitioner.