Rape on false promise to marry: Calcutta High Court acquits man; says woman consented to sex because she was in love and desired it

A man charged with rape after he had sexual intercourse with woman on an alleged false promise of marriage, was recently acquitted by the Calcutta High Court [Binod Banik v. The State of West Bengal & Anr].The Court found that the woman (prosecutrix) had voluntarily entered into a sexual relationship with him because she was in love with him and desired it and “not because he promised to marry her". Relying on various case laws, the Court observed that the consent given by a woman for sexual intercourse with a man with whom she is deeply in love with on a promise that he would marry her on a later date “cannot be said to be given under a misconception of fact.”.“In plethora of judgments of Supreme Court and High Court have held that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact,” the judgment delivered on February 24 stated..The bench of Justices Joymalya Bagchi and Ajay Kumar Gupta was dealing with a case involving allegations that the accused man had assaulted and driven away his partner (prosecutrix) after she became pregnant and gave birth to his child. The child later passed away..The Court remarked that while it may be morally reprehensible that the accused had deserted the prosecutrix after she became pregnant, such moral indignation alone is not sufficient to make out a case against the accused if there was nothing to prove any dishonest intention on his part..Rather, on an examination of the submissions made by the parties, the Court opined that it appeared to be a voluntary affair between the accused and the prosecutrix..“No doubt it is morally reprehensible for the appellant to desert the victim lady with whom he had entered into an informal marriage after she had become pregnant. But moral indignation cannot take the place of legal proof that the cohabitation of the parties was on the basis of a dishonest representation of the appellant. Even for arguments sake it is accepted the appellant had committed a breach of promise that by itself cannot give rise to an inference that he entertained dishonest intention at the inception of the relationship. On the other hand, it appears parties cohabited under an informal arrangement and subsequently the appellant refused to formalise the relationship which resulted in the institution of the criminal case. These circumstances do not persuade this Court to hold cohabitation was on the basis of dishonest representation”, the Court found..The prosecutrix had asserted that they had been cohabiting together after the accused promised to marry her. A complaint earlier filed by the woman against the accused had been withdrawn after the accused promised to marry her, she submitted further..During their cohabitation, the accused was also stated to have symbolically married the woman by putting vermillion on her forehead. However, he later refused to enter into a formal marriage and drove her away, the Court was told..The Court, however, took note that the prosecutrix and the accused had been cohabiting for a considerable period of time before misunderstandings cropped up between them, leading to their split as the accused was unwilling to formally marry the woman. .The Court held that it could not be readily inferred that the earlier cohabitation between the parties was based on a false promise of marriage..The bench further opined that the woman was old enough and intelligent enough to understand “the significance and moral quality of the act she was consenting to” when she cohabited with the accused and had a physical relation with him. “That is why she kept it a secret as long as she could. It appears that the matter got complicated on account of the prosecutrix becoming pregnant,” the Court added..The Court concluded that the prosecutrix had voluntarily and consciously consented to have sexual intercourse with the accused and that her consent was not a result of any misconception of fact..“In the instant case, the prosecutrix was a grown up lady aged about 26 years at the time of incident and she and the appellant were in physical relation. They have made sexual intercourseon several occasions in the residence of victim lady as well as the appellant. The circumstances clearly indicate that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was in love, not because he promised to marry her, but because she also desired it,” the Court found..Hence, the Court proceeded to acquit the appellant-accused and set aside the conviction awarded to him by a Sessions Court..Advocates Prabir Majumder, Snehansu Majumder, Avisek Chatterjee, and Sangeeta Chakraborty appeared for the appellant. Advocates SS Imam and Sandip Kundu appeared for the State..[Read Judgment]