Consent for sexual intercourse under misconception of fact is not free consent: Bombay High Court

Consent for sexual intercourse under misconception of fact is not free consent, the Nagpur Bench of the Bombay High Court held while refusing to quash a case against a man accused of raping and cheating a woman by establishing sexual relations with her under the guise of promise of marriage (Navneet Ashok Bangalkar v. State of Maharashtra & Anr)..The Bench of Justices AS Chandurkar and GA Sanap opined that sexual intercourse against the will of the complainant by obtaining her consent under the promise to marry could not be said to be free consent. .The facts in the present case were that the applicant and the complainant were engaged to be married in February 2021. However, due to the lockdown during the second wave of the COVID-19 pandemic, their marriage was postponed to May, which got further postponed after the complainant tested COVID-19 positive. In the meantime, in June 2021, at a party organized by the applicant for the complainant, the two had sexual intercourse which the complainant claimed to have consented to under the pretext that the couple would be getting married in a few days.After this incident, the applicant allegedly began avoiding and neglecting the complainant and sought a time period of eight days to fix a date for marriage.On June 22, 2021, the family of the applicant conveyed to the complainant’s family their disinclination to go ahead with the marriage for the reason that the complainant seemed to be addicted to liquor and “her mental condition is such that she could not be shown pity.”The complainant stated that the accused established sexual relations with her under a false promise to marry and then by refusing to marry her, cheated her.Based on the complaint, a first information report (FIR) was registered for offences under Section 376 (rape) and 417 (cheating) of the Indian Penal Code. The applicant then moved the High Court seeking quashing of the FIR..The applicant stated in his plea that the complainant seemed to be not interested in him and that there seemed to be compatibility issues between them. Due to these reasons, he found it difficult to spend his entire life with the complainant. Additionally, the applicant also claimed to have received a call from an unknown number threatening him to break off the wedding. On these accounts, he stated, the wedding was called off. He further alleged that the complainant’s family members demanded an amount of ₹50,000 for calling off the marriage. He stated that a false FIR had been registered against him and that no case had been made out..At the outset, the Court rejected the compatibility defence taken by the applicant, opining that the change of mind by the accused of calling off the wedding seemed to have occurred after having established sexual relations with the complainant.The Court added that this conduct of the applicant, coupled with the relevant facts in FIR, indicated that he established sexual intercourse with the complainant under the guise of a false promise to marry her in the future."In this case, the facts in the FIR and the conduct of the applicant would clearly show that the intention and the motive of the applicant was sinister," the order stated..The Court further opined that this did not seem like a simple case of cheating, but was cheating coupled with the serious offence of rape."It can be gathered on the basis of the material that the applicant had hidden intention not to marry with the applicant once his sexual lust is satisfied," the Court stated while refusing to quash the FIR. .Advocate JB Gandhi appeared for the applicant. Additional Public Prosecutor SS Jachak appeared for the State. Advocate SV Deshmukh appeared for the complainant..[Read order]