Allegation Of 'Consent On Pretext Of Marriage’ Gets Shattered When Woman Continues Relationship With Man Even After His Marriage: P&H High Court

A division bench of Justice Sureshwar Thakur and Justice Kuldeep Tiwari, said:

“The allegation that consent was obtained under the pretext of marriage, loses its significance and becomes shattered, simply in light of the fact that the sexual relationship continued even after the marriage of respondent No. 2.”

The Court proceeded to add that:

“The prosecutrix is an educated girl, who worked as an Assistant Professor ... Therefore, she was well aware of the fact that once the respondent No. 2 had married another woman, her marriage with respondent No. 2 was not possible. However, despite hers being aware of all the consequences, the prosecutrix chose to continue her relationship with a married man. In such circumstances, the consent of the prosecutrix was voluntary, and, not under any misconception of fact.”

The court made the observations while dealing with an appeal filed by the prosecutrix against the order of acquittal of the accused. Additional Sessions Judge, Jind, in December 2021 had acquitted the respondent of offences under Sections 354 (D), 376(2) (N) and 506 of the IPC.

As per the FIR filed by the prosecutrix, the respondent allegedly had sexual intercourse with her on multiple occasions against her will from 2012 onwards, with the first intercourse being forcible in nature upon administration of intoxicating substances to her and the subsequent sexual activities being under the promise of marriage.

The woman became pregnant in 2016 but was forced to undergo abortion by the accused, according to complainant. 

Further, as per the FIR, the respondent got married in 2017, which fact came to the knowledge of the prosecutrix only at a later stage. However, the respondent, continued making physical relations with the prosecutrix against her will under the pretext of marriage. He allegedly told her that he wants to get divorce from his wife.

The trial court in the verdict held that the prosecutrix was having a love affair with the respondent and that she freely exercised her choice between resistance and consent. As per the trial court, there was nothing on evidence to conclusively prove that the respondent had no intention to marry her from the beginning or that he had extended such promise only to establish sexual relationships with her.

In appeal before the High Court, the prosecutrix argued that the trial court erred by placing reliance on the minor contradictions.

The division bench after perusing the FIR and the statements of the prosecutrix under Section 164 of the CrPC, noted material contradictions in her statements and concluded it to be a case of consensual sexual relationship.

“Prosecutrix in her statement under Section 164 CrPC only stated that she was having love affair with the respondent No. 2, who had promised to marry her and that is why she developed physical relations with him. She did not allege any incident of commission of rape under deceitful intoxication. Not only this, there is no other medical or forensic evidence brought on record qua administering of any intoxicant to her … from the above, it emerges that there is not one, but, various material contradictions in the statement of prosecutrix,” said the court.

In a similar decision passed last year, the Kerala High Court held that the very fact that the complainant was having a relationship with the petitioner-accused since 2010, which relationship she continued even after knowing about his marriage from 2013 onwards, would nullify the story regarding sexual intercourse on false pretext of marriage.

Case Title: ABC v. State of Haryana and Another

Case No: CRA-AD-140-2022 (O&M)

Citation: 2023 LiveLaw (PH) 28

Coram: Justice Sureshwar Thakur and Justice Kuldeep Tiwari

Click Here To Read/Download the Order