Sex On False Promise- 'Putting Vermillion On Victim's Forehead Shows Man's Intention To Marry': Allahabad HC Refuses To Quash FIR U/S 376 IPC

The facts of the case

The Court was hearing the plea of one Vipin Kumar who sought quashing of the summoning order passed by the Chief Judicial Magistrate, Shahjahanpur in a criminal case registered against him under Section 376 IPC.

Further, he also prayed for quashing of Charge sheet/Final Form and entire proceedings of the case on the ground that in view of the contents of the FIR, it was evident that complainant/victim had consensual sex with him.

The allegations against the applicant, who is working as JE with the Border Road Organization was that he, under the garb of and in the name of contracting marriage established physical relationship with a woman/victim, despite her reluctance and denial and thereafter refused to marry her.

The accused allegedly refused to marry her on the ground that since the daughters from the man's family are married in the family of the girl, and therefore, a girl couldn't be brought from that family, where they have already given their daughters through an alliance of marriage.

Submissions advanced

The prosecution submitted that the accused/applicant had performed a ceremony with the woman, though symbolic, called "मांगभराई" [to apply betrothal sindur (vermillion) to the middle line of the head of a woman where the hair is parted], which is an important step under Hindu Traditions and Culture leading towards the marriage i.e. "Saptpadi".

Therefore, it was argued that in the name of this ceremony, a false promise to marry was made as it was a sort of consummation of marriage with the victim.

It was further added that the taking place of this ceremony was itself indicative of applicant holding a false promise of marriage inasmuch as he had no intention of marrying the prosecutrix.

Lastly, it was also contended that the accused knew it from the beginning about his family tradition and therefore, despite knowing this family tradition (that daughters can't be brought from the family of woman), the assurance given by the accused to obtain the consent of the victim cannot be said to be a consent free of any blemishes.

Court's observations

At the outset, the court noted that to establish that the "consent" (to establish a sexual relationship) was vitiated by a "misconception of fact" (as per Section 90 of IPC) arising out of the promise to marry, two propositions must be established and which are:

• The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
• The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

It may be noted that the accused can be convicted for rape only if the Court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives.

Against this backdrop, the Court examined the facts of the case and noted thus:

"… the day when the applicant made a promise (to marry), he was aware of the fact that as per his family tradition, he will not be able to marry the girl with whom he is making a promise to marry for extracting a favor of the physical relationship. Secondly, the act of the applicant of carrying out ceremony of " मांगभराई" is another proof of the fact that he entered into a physical relationship on the solemn promise of entering into wedlock, whereas from the beginning, the applicant was aware that as per his family traditions and customs, he will not be able to marry the girl in question."

The Court further noted that there was no material available on record to show that the prosecutrix was deeply in love with the applicant.

Lastly, underscoring that 'intention' and 'motives' will be subject to final scrutiny during the trial, the Court held that no case was made out for quashing of the charge sheet or the summoning order and thus, the application was dismissed.

Case title - Vipin Kumar @ Vikki v. State of U.P. and Another

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