It is definitely in the fitness of things that while taking the most appropriate stand in tune with the present circumstances, the Gujarat High Court at Ahmedabad in a most learned, laudable, landmark, logical and latest judgment titled R/Criminal Misc. Application (For Quashing & Set Aside FIR/Order) 21237 of 2019 that was pronounced as recently as on 19/09/2024 has minced absolutely just no words to hold in no uncertain terms that every sexual relationship where a man fails to marry a woman despite having promised to do so cannot be considered rape. It is extremely significant to note that the Single Judge Bench comprising of Hon’ble Mr Justice Divyesh Joshi was at pains to point out that cases of consensual sexual relationships later being converted to rape are on the rise just like increase in false cases lodged against the husband under Section 498A of Indian Penal Code (IPC) for cruelty towards wife. What must also be borne in mind is that the Bench was most unequivocal in saying that, “Now the question arises that mere say of a woman of being promised to marry by the accused, can be so believable so as to held the accused guilty of the offence of rape. The answer is ‘No’. In every case where a man fails to marry a woman despite a promise made to her, cannot be held guilty for committing the offence of rape. He can only be held guilty if it is proved that the promise to marry was given with no intention to honour it and also that was the only reason due to which the woman agreed to have a sexual relationship.” Thus it allowed the accused man’s plea and deemed it fit to quash the criminal proceedings that were initiated against him. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Divyesh Joshi sets the ball in motion by first and foremost putting forth in para 2 that, “The respondent No.2, although served with the notice issued by this Court, has chosen not to remain present before this Court either in person or through an advocate and oppose the present application.”
As we see, the Bench then discloses in para 3 that, “By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.1-35 of 2019 registered before the Keshod Police Station, Junagadh for the offence punishable under Sections 376, 506(2) of IPC and Sections 3(1), W(i)(ii), 3(2)(5), 3(2)(5A) of the Atrocities Act.”
To put things in perspective, the Bench envisages in para 4 that, “According to the complaint filed on 21.02.2019, the complainant and the applicant-accused came into contact with each other about one and a half year ago, and before five months, the applicant-accused entered into a physical relationship with the complainant by giving her a promise to marry. Thereafter, they continued to meet each other. After some time the applicant-accused called the complainant at his Vadi and again made a physical relationship with her. It is alleged that after some period of time, on the complainant realizing her of being pregnant, she informed the applicant about the same, however, the applicant-accused declined to accept the same and backed from his promise. With this sort of allegations, the impugned FIR has been registered.”
Most significantly, what should grab maximum eyeballs is then laid bare in para 9 which constitutes the cornerstone of this notable judgment postulating that, “A cursory perusal of the above provision makes it clear that in the entire provision, there is not a whisper about a person committing rape on a woman being her love interest. Because the word love in itself carries ‘consent’. Clause (j) of sub-section (2) of Section 376 talks about a woman incapable of giving consent, which means either a girl of a tender age who is not so matured enough to understand the things and the consequences of the consent being given by her for the proposed act, or a mentally disabled girl or a woman. Here, in the instant case, at the time of the alleged offence, as per the say of the applicants’ counsel, the girl was 19 years old and had already attained the age of majority and was matured enough to understand what is right and what is wrong and what would be the consequences of a particular act being allowed to be done upon her. That apart, looking to the allegations as stated in the complaint, the same do not make out a case under any of the other categories as mentioned in Section 376, requiring the applicant-accused to undergo the ordeal of trial.”
Equally significant is what is then pointed out by the Bench in para 10 stating that, “The word “rape” is derived from the Latin term “rapio” which means to “seize”. In other words, rape can be defined as the ravishment of a woman without her consent, by force, fear against her will. To further define a rape, it can be once and there must be a resistance from the victim upon which such an sexual assault is attempted to be committed. But if such a sexual act was allowed to be continued for some time by a woman, for which FIR is being lodged at a later stage upon disputes having been cropped up, then the element of consent would come into play, and when consent comes, that too of a major girl, then the case no longer remains to be of a rape.”
No less significant is what is then expounded in para 11 holding that, “Like the cases under the provisions of the Domestic Violence Act and under Section 498(A), the cases of consensual sexual relationship being later converted into allegations of rape are rapidly increasing. In the case at hand, the applicant-accused and the complainant was in relationship past one and a half year. She knew the applicant-accused since quite a long time. It is alleged that before five months from the date of the filing of the complaint, applicant-accused established a sexual relationship with her on the promise of marriage. Now the question arises that mere say of a woman of being promised to marry by the accused, can be so believable so as to held the accused guilty of the offence of rape. The answer is ‘No’. In every case where a man fails to marry a woman despite a promise made to her, cannot be held guilty for committing the offence of rape. He can only be held guilty if it is proved that the promise to marry was given with no intention to honour it and also that was the only reason due to which the woman agreed to have a sexual relationship. Let us assume that instead of asking her to share the bed, if a woman is asked to provide anything else by the accused like any assets or some other valuable things of her ownership on a promise to marry her later, then whether would she fulfill such a demand: if ‘No’, then why her precious corpus before marriage?, and if still it has been done, then she can be presumed to be the consensual party fully aware about the consequences of the proposed act and action, and deliberately avoiding or ignoring any foresee danger, would result into the present situation. Further, a girl who is fully aware of the nature and consequences of the sexual act, gives consent for the same based on a promise to marry and continue her relationship for a long period, then in such cases it becomes really difficult to determine whether the reason behind the giving of consent was only the promise made by the boy and not a mutual desire to be together.”
Quite significantly, the Bench points out in para 12 stating that, “Further, there is a distinction between a false promise and a breach of promise. False promise relates to a promise which the accused had no intention to fulfill from the beginning, whereas a breach of promise may happen due to many factors. Such as if a boy fell in love with someone, he might get involved with another partner, he might be compelled by his family to marry someone else, etc. this doesn’t mean that the promise was false from the beginning. So, the determining factor is only the intention of the accused. However, the determining factor of the consent, whether it was obtained voluntarily or involuntarily, will depend on the facts of each case. The court must consider the evidence and the circumstances in every case before reaching a conclusion, but if the court finds that the prosecutrix was also equally keen, then, in that case, the offence would be condoned.”
It is worth noting that the Bench very rightly notes in para 18 observing most decisively that, “Before I conclude, it is to be worth noting that after the registration of the complaint, the complainant gave birth to a baby boy claiming to be through the relationship with the applicant-accused. Therefore, the DNA samples of both, the son of the complainant and the applicant-accused was taken and sent to the FSL for analysis and a report thereof on record suggests that both the DNA samples are not matching to each other and the applicant-accused is not a biological father of the son of the complainant. After that nothing more remains to be said. Because specific allegation has been made in the complaint that the complainant became pregnant through the relationship with the applicant-accused, however, as per the DNA report of the FSL, the applicant-accused is not a biological father of the son of the complainant, which completely falsifies the case of the prosecution.”
Be it noted, the Bench notes in para 19 that, “So far as the allegations under the provisions of the Atrocities Act are concerned, looking to the allegations made in the complaint, the same do not constitute an offence under the Atrocities Act.”
As a corollary, the Bench holds in para 20 that, “Based on the holistic consideration of the facts and circumstances summarized in the foregoing paragraphs as well as the tenets of law enunciated in the above referred decisions, I am of the view that the present application deserves consideration.”
Finally, the Bench then concludes by aptly holding in para 21 that, “In the result, the present application succeeds and is hereby allowed. The First Information Report being C.R. No.1-35 of 2019 registered before the Keshod Police Station, Junagadh is hereby ordered to be quashed. All consequential proceedings arising from the same also stands terminated. Rule is made absolute to the aforesaid extent. Direct service is permitted.”
In a nutshell, it is high time and Centre and law makers must now definitely read this most sagacious judgment in its entirety and take note of what is so manifestly held in this leading case that there is rapid increase in consensual sexual relationships being registered as rape cases as it is a very serious matter and cannot ever be taken lightly! It is also very rightly pointed out that every sexual relationship despite promise to marry cannot be considered rape. There must be stringent punishment even for women if she lodges false cases whether of rape or dowry or in any other case which must include a fixed jail term and so also monetary compensation to the affected men or boy! To say the very least, Centre now without any more further delay most promptly must amend the penal laws and consensual sex should not be considered rape so that the brazen, brutal, blind and baseless abuse of penal laws against men and boys are combated, checked and crushed to a very large extent if not completely as ideally it should be! No denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
