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The Allahabad High Court has pressed for a proper legal framework to deal with cases where the accused makes false promise of marriage only to satisfy his lust, and said that this certainly falls within the ambit of cheating and playing deception to obtain consent for sex.
The single-judge bench of Justice Pradeep Kumar Srivastava said, “This feudal mind set and male ‘chauvinism’ that women are nothing but an object of enjoyment is required to be rigorously addressed and strictly dealt with in order to create a healthier society and to increase a sense of security and protection in the mind of women”.
The appellant, Harshvardhan Yadav, filed the appeal against the Sessions Court order rejecting his bail application. An FIR has been filed against him under section 376 (Punishment for sexual assault) of Indian Penal Code as well as under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989.
The appellant contended that although FIR was lodged, no sign of rape was found in medical examination and during the investigation the manager of the hotel stated that the appellant and the complainant had identified themselves as husband and wife, on the date of the alleged incident. The complainant is working as police constable in the UP Police. The appellant submitted that the case has been filed for blackmailing and forcing him into marriage. The counter affidavit filed by the State submits that the appellant had called her to the hotel to finalise marriage and in the hotel room committed rape on her.
The FIR states that on the date of incident, while she was going to Kanpur he called her in a Hotel to talk to her about documents with regards to court marriage. There he tried to have physical relationship with her, and on her resistance, forcibly committed rape on her. When she shouted, he humiliated and abused her by caste related words saying that she is of SC community, nobody will marry her nor she has status to marry him.
It has been contended by the appellant that both went to hotel and it was a consented sex on the part of the complainant as she was in love with the appellant. The counsel for the appellant relied upon case laws whereby the complainants have consented to have sexual intercourse on the promise that the accused would marry and the courts have refused to accept the plea of rape.
The question of consent
The court observed that the argument that in the medical, no sign of rape was found is meaningless in such kind of cases. the court also refused to accept the contention that it was an act for which the informant had given consent and there was no occasion for misconception of fact. The court pointed to the section 90 of IPC which states that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be a valid consent. The court also pointed out section 114A of the Evidence Act which assumes absence of consent in cases of rape.
The court held that while considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. The court, after perusing the material on record, observed that this was a single act of sex as previous incidents have not been mentioned by either party. “Nowhere, it has been said by the appellant that he is still willing to marry with the respondent no. 2. This shows that he was making false promise of marriage and on the pretense of preparation of document for court marriage, he called her in the hotel,” the court observed.
False promise of marriage
The court pointed out that false marriage promise is and always has been an effective tool of mischievous males for creating emotional pressure on a woman for having sex. “There is a clear distinction between rape and consensual sex and in a case like this it is apparent from the facts and circumstances that the accused had actually never wanted to marry the victim and had mala fide motives, and had made a false promise to marry only to satisfy his lust, and this certainly falls within the ambit of cheating and playing deception to obtain consent for sex,” the court held.
The court highlighted that rape is considered to be physically and morally reprehensible crime and sexual intercourse on the pretext of false promise to marry is, and ought to be an offence of rape under the penal provisions. The court observed that this is becoming a phenomenon that accused makes a false promise of marriage with the mala fide intention to deceive the victim. The court also identified that for women in our society promise of marriage is a great allurement and they are trapped in a situation which results in their sexual abuse and exploitation.
The court finds it necessary for the legislature to provide a clear and specific legal framework to deal with the cases where the accused obtained consent for sexual intercourse on the false promise of marriage.
How courts must handle such cases
The court stated that until such lacuna is filled, the court has to take into consideration the social reality and reality of human life and continue giving protection to such women.
“Unless there is prolonged relationship which raises a strong inference of consensual sex, in other cases, particularly, in cases of single act of sexual intercourse as is the case in the present case, or relationship for a short time, persuaded by false promise of marriage or where circumstances show that the accused never intended to fulfill the promise or he could not be able to fulfill the promise on account of factors such as the accused was already married, he disclosed wrong identity, name, religion and other details to play deception to obtain consent for sexual intercourse, or the like. Obtaining consent for sexual relationship by false promise of marriage should be termed as consent given under misconception of fact and must amount to rape,” the court held.
The court held that it cannot be a silent spectator and give license to those who are trying to exploit the innocent girls and have sexual intercourse with them on the pretext of a false promise of marriage. “This feudal mind set and male ‘chauvinism’ that women are nothing but an object of enjoyment is required to be rigorously addressed and strictly dealt with in order to create a healthier society and to increase a sense of security and protection in the mind of women,” the court said.
In conclusion, the court held that the facts and circumstances go to show that the appellant made a false promise of marriage to the victim and he never intended to fulfil the same and thus was not inclined to interfere with the Sessions court order ejecting his bail; the court said that the accused does not deserve the court’s sympathy and dismissed the appeal.
The complete order may be read here:
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