Cannot punish man for rape when promise to marry was not fulfilled due to family opposition: Calcutta High Court

The Calcutta High Court on Tuesday observed that it would be incorrect to punish a man for the offence of rape when his promise to marry the victim girl could not fructify due to opposition from family members [Saddam Hussain v. State of West Bengal]..A Division Bench of Justices Joymalya Bagchi and Bivas Pattanayak was hearing an appeal against a 2015 judgment of the Additional District and Sessions Judge, Islampur, which had convicted the appellant under Section 376 of the Indian Penal Code (IPC) and sentenced him to suffer imprisonment for 10 years and a fine of ₹50,000."It would be incorrect to punish the appellant as the promise to marry did not fructify due to subsequent event, namely, opposition from family elders which is not attributable to him," the High Court ruled while setting aside the Sessions Judge verdict.It was the case of the prosecution that the appellant one Saddam Hussain had forcibly cohabited with a girl (victim) on the false promise of marriage. After the girl became pregnant and asked the appellant to marry her, the appellant had refused to marry her due to strong objections from his family members.However, the appellant submitted that the victim girl was a consenting party and since the marriage between him and the girl could not fructify only due to resistance and opposition of the family of the appellant, the appellant cannot be held liable for rape..The Court agreed with the appellant's contention stating that failure to keep the promise cannot be a ground to conclude that the promise was dishonestly made."Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception. Evidence has come on record that the appellant and the victim girl wanted to marry each other and cohabited. As a result, she became pregnant but due to resistance of the parents of the appellant marriage was not held," the High Court noted.Addressing the prosecution argument of forceful cohabitation, the Court observed that the same cannot be accepted since nowhere in the First Information Report (FIR) lodged by the victim-girl had she stated about forced cohabitation by the appellant.The Court also said that the victim was above 16 years of age which was the age of consent during the time of the incident."The date of birth of the victim is March 18, 1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent. From the materials on record, it appears that the cohabitation was consensual. Appellant was a young person and the marriage proposal did not come to fruition due to opposition from elders. Hence, it cannot be said that the appellant did not intend to marry from the inception of the relationship," the Court noted.The Court, therefore, set aside the conviction.Advocates Debarshi Sharma, Ankita Das Chakraborty and Sagnik Mukherjee appeared for the appellant.Public Prosecutor SG Mukherjee, Advocates Amita Gour and NP Agarwal appeared for the respondent..[Read Judgment]