Sex based on genuine promise of marriage that failed to materialise due to external factors is not rape: Delhi High Court

The Delhi High Court has held that sexual relations established on a genuine promise of marriage that later failed to fructify due to external circumstances is not rape [Shailendra Kumar Yadav vs State]. .Justice Subramonium Prasad said that there is a difference between a false promise of marriage and the breach of a promise to marry.In the latter, the court explained, sexual relations are initiated on the premise that the two individuals will marry at a later point of time. But in the former, sexual relations take place without any intention of marrying at all and consent obtained for said relations is vitiated by way of misconception of fact..The observations came from the Court as it set aside an order of the the Additional Sessions Judge (ASJ) (Central), Tis Hazari Court.The ASJ had framed charges against a man for offences under Section 376(2)(n) (committing rape repeatedly on the same woman) of the Indian Penal Code (IPC).The petitioner (accused before the lower court) challenged the order of framing of charges, before the High Court. .The single-judge was told by the prosecutrix and State that the petitioner had extended a false promise of marriage on the basis of which he had sustained a physical relationship with her. The prosecutrix and the petitioner were engaged and the wedding was postponed due to issues in the former's family, it was said.Thereafter, arguments arose about the date of marriage as well as financial condition of the prosecutrix and though she requested the petition to marry her by way of court marriage or in an Arya Samaj temple, this request was rejected.It was alleged that the issues were being raised by petitioner and his family were due to the fact that the prosecutrix was not financially well-off, and that the petitioner wanted to marry a girl whose father would have the wherewithal to invest money in the marriage..The petitioner argued that the couple were involved in a serious relationship but physical relations between the two had never taken place.It was submitted that despite the incompatibility between the two, the petitioner was in love with the prosecutrix and intended to settle down with her therefore a roka (engagement) ceremony had taken place.Counsel for the petitioner said that that the instant matter is merely a case of a relationship that has ended on bad terms and the lower court had failed to apply its judicial mind to the facts of the case, and mechanically framed charges..Justice Prasad observed that to arrive at the conclusion that sexual relations between the petitioner and prosecutrix were coerced, it is necessary to examine whether, at the stage of rendering a promise to marry, it was done with the intention of not keeping the promise and therefore, was false at the inception.He said if it is found that the promise of marriage was genuine and that the marriage failed to fructify due to external circumstances, then the promise cannot be said to be false, and consent as per Section 90 of the IPC is not vitiated.The Court said that as per Section 90, consent given under fear or misconception cannot be said to be consent and in this context, it becomes relevant to factor in the aspect that the prosecutrix and the petitioner were in a long-term relationship..After perusing the first information report (FIR) and the status report, the judge held that not only were they (prosecutrix and petitioner) in a long-term relationship but even a roka had taken place that was attended by all family members, indicating that the petitioner did indeed intend to marry the prosecutrix.“Just because the relationship ended on hostile terms, it cannot be said there was no intention of the Petitioner to marry the prosecutrix in the first place. Flowing from this, this Court is of the opinion that the consent so accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear," the Court said. .Justice Prasad added that the lower court had failed to accord any reasons to substantiate as to how there was sufficient material to proceed against the petitioner under Section 376(2)(n) IPC.He said that the order has merely recorded the submission of the Additional Public Prosecutor (APP) that there is sufficient material on record to prosecute the petition under Section 376(2)(n) and proceeded at the behest of the prosecutor, without providing any reasons to justify its stand.“As has been stated above, the trial court is not a mere post office and must apply its mind to the facts of the case to arrive at the conclusion as to whether a prima facie case is made out against the accused that would warrant charges to be framed against them. The order dated March 8, 2021 has evidently failed to perform its duty and has rendered a mechanical order on charge without sifting or weighing the evidence before it,” the Court stated. .The lower court's order is replete with legal infirmities and deserves to be set aside, the High Court ruled..The petitioner in the case was represented by advocate Badar Mahmood. Additional Public Prosecutor Neelam Sharma appeared for the State. .[Read Judgment]

Sex based on genuine promise of marriage that failed to materialise due to external factors is not rape: Delhi High Court

Prashant Jha

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