‘Consent’ given for sexual intercourse on the ‘promise of marriage’ after evaluating various possibilities and consequences, is a valid ‘consent’ and therefore, does not result in an offence under Section 375 of Indian Penal Code.
The Hon’ble Supreme Court vide its order dated 21.08.2019 in Pramod Suryabhan Pawar vs. the State of Maharashtra and Anr. bearing Criminal Appeal No.1165 of 2019, explained the difference between consent given pursuant to a ‘false promise of marriage’ and ‘consent’ given on the promise of marriage but after evaluating all the various possibilities and consequences by the woman. The Hon’ble Court held the former consent to be no consent and the latter to be a valid ‘consent’ for the purpose of the offense of rape under Section 375, IPC.
Challenge
The factual matrix of this case is that the present appeal is to challenge the order of the Hon’ble High Court of Bombay dismissing the petition of the appellant under Section 482, IPC for quashing of the FIR of the complainant. The complainant had in her FIR alleged that she and the appellant were known to each other since 1998 and met regularly till 2004. The complainant has further alleged that the appellant had proposed the complainant in the year 2008 and assured her that her belonging to a different caste would not be a hindrance and would marry her after the marriage of his elder sister, therefore, she gave consent to have sexual relationship. It is alleged that the appellant reiterated this promise on many occasions and continued to have sexual relation with the complainant. It is further alleged that in the year 2009, when she was appointed to the post of Assistant Sales Tax Commissioner at Mazgaon, the appellant would come to meet her and though the complainant would refuse to engage in sexual intercourse with the appellant but on the ‘promise of marriage he forcibly established corporeal relationships’. It is further alleged that she was transferred to different locations, but the appellant used to visit her there and stay with her for four-five days and had sexual intercourse based on the promise of marriage. It is further alleged that though the elder sister of the appellant got married on 5th February, 2012, in December, 2012, when the appellant visited her, he for the first time expressed concerns over marriage on the ground that the marriage between the parties would hinder into the marriage of the appellant’s younger sister for the reason that they belonged to different castes, however, they still continued to meet each other and had sexual intercourses. It is further alleged in 2013-14, the parties visited a hospital multiple times to check whether the complainant was pregnant. In January 2014, the appellant again raised concerns about their marriage on the ground of the caste, still they continued the sexual relationship. It is further alleged that on 27 and 28 August 2015 and 22 October 2015, the appellant sent the complainant certain message insulting her and attacking her on the ground that she belonged to Schedules Caste. It is further alleged that in November 2015, for the first time the complainant threatened the appellant to file a police complaint to which the appellant again promised her that they would marry after the marriage of his brother. On 9th March 2016, they engaged in sexual intercourse and subsequently, the complainant was apprised by the appellant of the fact that the appellant was engaged to another woman and the appellant informed her that the other woman is demanding Rs. 2 Lakhs to break of the engagement. On 28th March 2016, the appellant re-iterated his promise to marry the complainant and arranged for the complainant to speak to the other woman with whom he was engaged, to assure that the appellant was no longer engaged to her. Subsequently, the complainant came to know that the appellant had married on 01st May, 2016, thereafter, FIR was filed on 17.05.2016.
The counsel for the appellant had argued that the relationship between the parties was with consent of the complainant as evidenced from the multiple visits of the parties and cohabitations and lack of resistance by the complainant.
The counsel for the Respondents argued that the consent was given based on the false promise of marriage and the complainant was manipulated to have physical relationship with the appellant when he was fully aware that he would not marry her because of her caste, therefore, the consent of the complainant was vitiated by the ‘misconception of facts’ by the Appellant.
Held
The Hon’ble Supreme Court, after referring many landmark judgments and provision of Section 375, IPC quashed the FIR on the ground that “consent” of a woman with respect to Section 375 IPC must involve an active and reasoned deliberation towards the proposed sexual act. The Hon’ble Court further held that the consent with respect to Section 375 involves an active understanding of the circumstances, actions and consequences of the proposed act and an individual who makes a reasoned choice to act after evaluating possible consequences flowing from action of sexual relation, consents to such action (sexual relation). To vitiate “consent” by a “misconception of fact” arising out of false promise of marriage, two propositions must be established, first, the promise was given in bad faith, with no intention of being adhered to at the time of giving and secondly, the false promise itself must have a direct nexus with the woman’s decision to engage in the sexual act.
The Hon’ble Court, in the present case, held that the allegations in the FIR do not on the face indicate that the promise by the appellant to the complainant was false and was done with bad intention to deceive her and the complainant engaged in the sexual relations on the basis of the false promise It is further observed by the Hon’ble Court that the complainant was aware about the issue of caste involved between the parties and still gave her consent, after evaluating all the consequences of her consent and further, when the appellant expressed his concern about the marriage in the year 2014, the complainant continued to engage in sexual intercourse until March, 2015, therefore, non-fulfilment of the promise made by the appellant in the year 2008 cannot be construed to mean that the promise itself was false and the appellant could be held liable for the offence of rape.