When a woman who is married enters into a sexual relationship outside of marriage, she cannot claim rape on false promise of marriage, the Punjab and Haryana High Court recently held.

Justice Shalini Singh Nagpal said that a fully matured married woman consenting to a sexual relationship outside of marriage on a promise of marriage is merely an act of promiscuity, immorality and reckless disregard of the institution of marriage and cannot lead to a rape case.

The Court made the observation while acquitting a man who was convicted and sentenced to nine years imprisonment in a case of rape in 2016. The complainant woman had claimed that she had entered into the relationship on the promise of marriage.

In the judgment passed on August 20, the Court said the complainant was “not a naive, innocent bashful young lady” who could not judge the implications of her impulsive decisions. 

She was a grown woman, mother of two children and was ten years older than the accused, the Court noted.

It added that she was intelligent enough to understand the consequences of the "immoral acts" for which she consented while her marriage was subsisting.

“When a fully matured married woman, consents to sexual intercourse on a promise of marriage and continues indulging in such activity, it is merely an act of promiscuity, immorality and reckless disregard of the institution of marriage, not an act of inducement by misconception of fact. Section 90 of IPC cannot be applied in any such case to pardon the act of a woman and the criminal liability on another,” the Court said.

In the appeal against his conviction, the man (appellant) had argued that the entire trial was vitiated as Section 225 of the Code of Criminal Procedure (CrPC) was violated in the case. It was explained that even in a private complaint case, the sessions trial was required to be conducted by a public prosecutor. 

On merits, it was argued that the married woman could not have been induced by the accused to agree for physical relations on the pretext of marriage.

The complainant did not contest the appeal on account of a compromise with the convict and did not object to allowing his appeal.

Considering the submissions made by the appellant, the Court agreed that the case was required to be conducted by a public prosecutor. However, it noted that nowhere during the trial of the case, any objection was raised by the appellant regarding the conduct of trial by a private counsel.

“It is not a case where there has been a denial of full and fair opportunity to the appellant to defend himself. Hence, non-prosecution of the case by a Public Prosecutor should not, in the opinion of this Court, be regarded as an illegality grave enough to vitiate the trial,” the Court ruled while rejecting the technical objection.

However, the Court on merits found the case to be favoring the convict. It said that an inducement for marriage to an unmarried woman is understandable but the complainant in the present case was married even though she claimed she was unhappy in the marriage and was in the process of seeking divorce from her husband, who was in the military.

“This claim of the prosecutrix is false on the face of it, given her admission that she was residing with her in-laws and had never launched any sort of litigation against her husband including divorce petition. Her statement regarding sexual intercourse by the appellant 55-60 times during the year 2012-13 is conspicuous by absence of dates and other material particulars. She admitted that the physical intimacy 55-60 times in the year 2012-13 was in her in-laws' house. Clearly, the prosecutrix was in a consensual relationship with the appellant for a period of more than two years during which period, she remained married to her husband. In the fact situation, her claim that appellant had physical relations with her and committed rape upon her on the assurance that he would marry her is per se false and unacceptable,” the Court said.

It further said the accused was clearly not in a position to induce her to intimacy on the assurance of marriage, that too in her own matrimonial house where her in-laws and children would also be present. 

The assertion that she was induced into sexual relationship and raped by the appellant on the basis of a promise to marry stands irrefutably falsified, it held.

“Even if the allegations levelled by her are accepted at their face value, it is unconceivable that a legally married woman could be induced into sexual relations on a promise of marriage. Accepting, such a promise was indeed made, it would be unenforceable in law being contrary to law and morality of the society. It appears that for two long years, day after day, week after week and month after month, the immoral arrangement of prosecutrix with appellant continued until the day of reckoning when she suffered an emotional set back on coming to know that appellant had solemnized marriage with another woman,” the Court added.

The Court further opined that it was a clear case of a consensual relationship turning sour and could not have been made the foundation for setting the criminal law in motion to wreak vengeance on the appellant. 

“Though the appellant cannot be regarded as completely innocent in the fact situation, yet such a relationship based on consent cannot be made the foundation of a charge, as serious as one under Section 376 IPC. In such a case, presumption stipulated under Section 114-A of Indian Evidence Act, 1872 cannot come into play nor can it be held that consent was given under a misconception of fact. The findings of learned trial Court based on Section 114-A of the Indian Evidence Act and Section 90 of IPC are unsustainable in the fact situation of the case and are liable to be set aside,” it added.

Senior Advocate RS Cheema with advocate Sumanjeet Kaur represented the appellant.

Advocate Vikas Gupta represented the complainant.

Senior Deputy Advocate General Jatinder Pal Singh represented the State of Punjab.