Not Rape if woman has physical relationship with breach of promise to get married: SC
NEW DELHI | August 22, 2019:
The Supreme Court has ruled that if a woman continues maintain a physical relationship with a man for a long time despite knowing it won't fructify in marriage, she cannot accuse him of rape on the ground that he made a false promise of marriage.
Under the law, a man can be convicted of rape if it is established that he had sexual intercourse with a woman on the pretext of a false promise of marriage.
A bench headed by Justice DY Chandrachud made a distinction between breach of a promise and a false promise, which would lead to "misconception of fact" vitiating a women's "consent" in law.
The bench held that where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent" under Section 375 (rape) of the IPC.
"On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it," said the judgment.
It emphasised that the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act and to establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established.
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"The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act," held the bench.
The court added that an individual who makes a reasoned choice to act after evaluating various alternative actions as well as the various possible consequences flowing from such action or inaction, consents to such action.
The ruling has come in a matter wherein a Deputy Commandant in the CRPF had moved the apex court to get the rape FIR against him quashed.
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The complainant in the matter, an Assistant Commissioner of Sales Tax, had alleged that on a sham promise of marrying her, the accused had established sexual relations with her.
The bench agreed to quash the FIR after underscoring that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled.
It noted that the complainant and the appellant knew each other since 1998 and were intimate since 2004 when they met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant.
The bench further noticed that the accused expressed his reservations about marrying the complainant in January 2014 because of their different castes but they still continued to engage in sexual intercourse.
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"The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her," it noted.
"The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false," maintained the court, adding the complainant was aware since 2008 that were issues with the duo getting married but they still continued to engage in sexual relations till 2015.
The allegations in the FIR, said the bench, belie the case that she was deceived by the appellant's promise of marriage and hence, no offence of rape under Section 375 of the IPC is made out.
