The Delhi High Court has held that a continuous intimate relationship that involves sexual activity over a significant period of time cannot be said to be induced by a promise to marry merely on the assertion that the other party had expressed their intention to get married.
It is the false inducement given with the intention to exploit the other party that would constitute an offence of rape under the Indian Penal Code, the Court has added.
The judgment was passed by a Single Judge Bench of Justice Vibhu Bakhru in an appeal against an order of acquittal passed by an Additional Sessions Judge in a rape case.
As per the prosecutrix, P, she had developed a friendship with the accused in 2013 which soon transformed into a love affair. She stated that the accused proposed marriage to her within two months of meeting her. Thereafter, in 2016, the accused invited P to his house where he allegedly raped her despite her resistance.
Later that year, the accused took her to a hotel and had allegedly raped her again. As per P, the accused then reneged on his promise and declined to marry her. Subsequently, P approached the police station alleging the commission of rape. Her statement was recorded by the police and she was medically examined. She, however, declined any internal medical examination.
After perusing the material on record, the Court observed that the fact that the accused had established a physical relationship with P could not be disputed. The only question that had to be answered was whether P had consented to the physical relationship under a false promise of marriage, it said.
The Court observed that it was an admitted position that the accused had evinced his intention to marry P more than two years before the first alleged incident of rape. Therefore, since the “inducement of marriage” was made more than two years and six months prior to the alleged rape, the Court stated that P’s testimony that she had objected to the accused touching her obscenely but had yielded on his promising marriage, was difficult to accept.
The Court noted that P had “unequivocally accepted” in her cross-examination that she and the accused were in love with each other and wanted to get married and it was P’s family which was opposed to their marriage. It was also observed that there was inherent inconsistency in the testimony of P’s father.
The Court further stated that P appeared to have used the allegation of inducement to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed.
“The prosecutrix had refused an internal medical examination. In her testimony, she had explained that she had done so because the accused had contacted her and again reiterated his promise to get married to her.”
The Court thus concluded that it could not be accepted that P’s consent was obtained by inducing her on the pretext of a promise to marry. The Court also sought to distinguish the act of “not marrying” with the alleged act of rape and stated,
“It is important to bear in mind that two consenting adults establishing a physical relationship, is not a crime. Jilting a lover, however, abhorrent that it may seem to some, is also not an offence punishable under the IPC.”
Explaining the jurisprudence on rape law, the Court added,
“In so far as consent to engage in a sexual act is concerned; the campaign ‘no means no’, that was initiated in the 1990’s, embodies a universally accepted rule: a verbal ‘no’ is a definite indication of not giving consent to engage in a sexual act. There is now wide acceptance to move ahead from the rule of ‘no means no’ to ‘yes means yes’. Thus, unless there is an affirmative, conscious and voluntary consent to engage in sex; the same would constitute an offence.”
The Court thus went on to remark that inducement to have a physical relationship by promising marriage could not be held as an inducement for engaging in sex over a protracted and indefinite period of time.
“…it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married.”
In view of the above, this Court concluded that there was no infirmity with the decision and dismissed the leave to appeal.
The State was represented by Additional Public Prosecutor Amit Gupta.
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