In a new twist to the definition of rape, the Delhi High Court said that if consensual sex occurs between two adults, then there is no wrongdoing even if they are married
A verdict on April 29, 2024, by the Delhi High Court has given a new dimension to the definition of rape. While granting bail to a married man accused of raping a woman on the false pretext of marriage, the Court said that no wrongdoing can be attributed if sexual activity occurs between two consenting adults, regardless of their marital status.
Justice Amit Mahajan passed this order while hearing a bail application of Sunny alias Ravi Kumar, filed under Section 439 of the CrPC. It was alleged that the applicant used to stalk a woman and proclaimed that he loved her. When she rejected his advances, he threatened her. It was also alleged that on December 1, 2021, the man called the woman to GTB Nagar Metro Station. There he threatened suicide, due to which she agreed to meet him and have regular conversations with him. Later, he forcefully took her to a friend’s house and established sexual relations with her. He also promised to marry her.
It was alleged that thereafter, he took the woman to a hotel 5-6 times and forced her to have sexual relations with him. He also took her to Haridwar in April, 2022, for three days and allegedly married her there. She later found out that the man was married and had two children.
The man submitted that the relationship between him and the woman was consensual and had continued for two years. The case registered against him, he said, was meant to harass, humiliate and torture him and there was an inordinate delay of more than one-and-half years in the registration of the FIR without any explanation.
The Court observed that the allegations against the man were that he had established forceful physical relations with the woman on multiple occasions on the false pretext of marriage. However, no complaint was made at that time.
Thereafter, the woman alleged that she had succumbed to the entreaties of the accused to have sexual relations with him on account of the promise to marry, and therefore continued to have sex on several occasions and even then no complaint was made by her. The man further alleged that the FIR was registered in March 2023, almost 15 months after the first alleged incident.
The Court further observed that no date or time of the alleged incident has been mentioned by the woman. Instead, there was a bald allegation by her about physical relations being established by the use of force by the applicant.
It is relevant to note that the woman was a major at the time of the alleged incident. Whether her consent was vitiated by a misconception arising out of a promise to marry cannot be established at this stage, and would be a matter of trial, the Court said. Further, whether threats were extended by the applicant to viral her photographs and that he had demanded monies or mobile phones from the prosecutrix could not be established.
“It is apparent that the prosecutor was meeting the applicant for quite some time before the filing of the complaint and wanted to continue their relationship even after knowing the fact that the applicant is a married man. While societal norms dictate that sexual relations should ideally occur within the confines of marriage, no wrongdoing can be attributed if consensual sexual activity occurs between two consenting adults, regardless of their marital status,” the Court said.
Further, the Court said that the woman continued with the relationship even after knowing that the man was married. This, in the view of the Court, prima facie points to her consent to maintaining the relationship. “It is not in dispute that the offence as alleged is heinous in nature. However, it cannot be lost sight of the fact that the object of jail is not punitive, but to secure the presence of the accused during the trial.”
It further said that false allegations of sexual misconduct and coercion not only tarnish the reputation of the accused, but also undermine the credibility of genuine cases. Hence, it is imperative for the Court to exercise utmost diligence in evaluating the prima facie allegations against the accused in each case, especially when issues of consent and intent are contentious.
Further, it was not in dispute that the antecedents of the applicant were clean. The applicant, aged 34, has been in custody since March 10, 2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose, the Court added.
The position of law as to when a “promise to marry” is a “false promise” or a “breach of promise” was settled by the Supreme Court in Pramod Suryabhan Pawar vs State of Maharashtra (2019) where it said: “To summarise the legal position that emerges from the above cases, the ‘consent’ of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the ‘consent’ was vitiated by a ‘misconception of fact’ arising out of a promise to marry, two propositions must be established. 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.”
Rape is defined by Section 375 of the Indian Penal Code, 1860. The Section penalises a man for all forms of non-consensual sexual contact and other non-consensual sexual penetration. One can infer from the provision that when dealing with rape cases, “consent” plays an important role under Indian criminal law. This is the rationale behind penalising a man for rape when he engages in sexual intercourse with a woman after acquiring her consent under the false pretext of marrying her.
In September 2023, the Allahabad High Court quashed the entire proceedings in a case against a man accused of raping a woman on the false promise of marriage. The bench of Justice Anish Kumar Gupta noted that the accused and the woman knew each other for more than 15 years and they had been in a physical relationship with the approval of the parents of the complainant for more than eight years. The Court said that the relationship between the parties was longstanding and the victim as well as her family members knew the consequences of it. Therefore, any subsequent breach of such relationship would not amount to the offence of rape under Section 375 IPC.
—By Adarsh Kumar and India Legal Bureau