Promise to marry cannot always be a condition precedent to sex between two otherwise consenting adults
Sunil Kumar Vs State of J&K and anr
Jammu and Kashmir HC
CRMC No. 512/2017
About/from the judgment:
Quashing rape charges against an Army man, the High Court of Jammu & Kashmir has held that the promise to marry cannot always be a condition precedent to sex between two otherwise consenting adults.
Noting that an educated, adult woman ought to be “fully aware of the consequences” of having sexual relations with a man before marriage, the High Court quashed the FIR filed against the petitioner under Sections 376 and 506 of the Ranbir Penal Code.
A Single Judge Bench of Justice Sanjay Kumar Gupta held,
“When a woman is major and educated, she is supposed to be fully aware of the consequences of having sexual intercourse with a man before marriage.”
Justice Gupta stated in his judgment that though consent obtained by fraud is no consent and sexual relations in such a scenario would amount to rape, a promise to marry cannot be said to be an inducement in all cases. It would differ according to the facts of the case.
The case of the petitioner was that a marriage proposal from the complainant’s family made in 2016 had been agreed to by his family, and the wedding was to take place in June 2017. However, before the ceremony took place, the petitioner found out that the complainant allegedly had a love affair with someone else.
The marriage was called off on account of this revelation, following which the petitioner was threatened by the complainant’s family with charges of rape. An FIR was subsequently filed against the petitioner at the behest of the complainant. He then approached the High Court to get the charges framed against him quashed.
Before the High Court, the complainant submitted that she knew the petitioner since the year 2010 and has been in a courtship with him since then. The two got engaged in February of 2017, according to the complainant.
It was also averred by the complainant that following the engagement, the petitioner took the complainant on trips to various outstation places and had sexual relations with her “on the assurance of marriage” while “acting fraudulently and dishonestly”.
The Court, examining the complainant’s admissions, noted that there are general allegations of rape and no specific date and time of the same had been furnished. Justice Gupta noted,
“Now-a-days there are cases where boy and girl having love affair, indulging into sexual relationship and ultimately ending into a breakup. Undoubtedly that amounts to consensual sexual relationship as they were in love with each other.”
The same cannot be said to be rape unless the consent is obtained through fraud, the Court held.
“In the event of consent obtained by fraud, inducement is a necessary ingredient. There should be some material on record to believe prima facie that the girl was induced by the accused to such an extent that she was ready to have sexual intercourse with him. Promise to marry cannot be said to be an inducement in all cases, it differ from facts of case. (sic)”
Had the petitioner possessed a fraudulent intention, he would not have told the complainant to study further and borne her expenses, the Court further added. Thus,
“Where there is mere breach of promise of marriage, and before breach they have sexual relationship, that sexual indulgent may amount to consensual one and not rape as defined in section 376 RPC. (sic)”
The Court finally held that even if there is a breach of promise of marriage, the complainant is an educated adult who had known the petitioner since 2010, and would be aware of the result of a sexual relationship. Besides, there was nothing on record to prove the petitioner’s fraudulent intent, the Court held.
The charge under Section 506 (criminal intimidation) was also ultimately quashed by the Court, which termed the FIR as being“manifestly attended with mala fide intention and has been maliciously instituted”.
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