|No straitjacket formula for determining whether girl’s consent was voluntary|
New Delhi: Sex with the consent of the girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat, the Supreme Court has held.
Consent requires voluntary participation in the sexual act after exercise of intelligence based on the knowledge of the significance and moral quality of the act, said a Bench of Justice Arijit Pasayat and Justice D.K. Jain.
The Bench said that there was no straitjacket formula for determining whether consent given by the girl was voluntary or given under a misconception of fact, viz ‘promise to marry.’
The Bench said “while considering the question of consent, the court must consider the evidence before it and the surrounding circumstances before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact.”
Writing the judgment, Justice Pasayat, however, said “if on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the offence.”
In this case, Pradeep Kumar of Bihar was said to have given a promise to a girl that he would marry her and had sexual relationship with her. When he did not marry, the girl gave a criminal complaint and he was charged with offences under Sections IPC 376 (rape) and 406 (criminal breach of trust).
He filed an application for discharge from the case on the ground that the girl had given consent for sexual relationship and hence no offence was made out.
The trial court rejected his plea and the Patna High Court upheld the trial court’s order. The present appeal by Pradeep Kumar is directed against this order.
Disposing of the appeal, the Bench said “the court has to see whether the person giving the consent has given it under fear or misconception of fact and the court should also be satisfied that the person doing the act, i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given.”
Observing that the High Court had not dealt with the case as per the law laid down by the apex court, the Bench set aside the High Court order and remitted the matter back for fresh consideration.
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As reported in India Political Blog as follows:
SC changes stand on marriage-promise sex being treated as rape
For quite some time now, the Indian Supreme Court has been taking the stand that if a man offers a pledge of marriage to a women, and then has sex with her, and then moves away from his pledge of marriage, he can be convicted of rape. This was always a surprise, because even if you accept that in a relationship in this country, with its societal emphasis of marriage for a women, consensual sex cannot be equated with marriage. Even with a relationship of unequals, as long as the act of physical relations was voluntary, to call it a rape would seem illogical. After all, the scope for misuse is tremendous, relationships can break up after some period of cohabitation. The existing understanding seemed to be heavily biased against men. Well, it seems that the Supreme Court has thought again about this stand, and wants to evaluate it on a case by case basis:
A man having sex with a girl after obtaining her consent on the promise of a marriage does not necessarily constitute rape even if he retracts on his pledge, the Supreme Court has ruled. Such retraction by the accused would amount to rape only if the consent was obtained by coercion or threat, a bench of Justices Arijit Pasayat and D K Jain said while upholding an appeal filed by the accused Pradeep Kumar.
The apex court maintained that there was no straitjacket formula for determining whether consent given by the girl was voluntary or given under a misconception of fact as it has to be decided on the basis of the circumstances and surrounding factors which led to the alleged consensual sex.
India Political Blog
Also read the Editorial in Hindustan Times