Intercourse on pretext of marriage: SC guidelines incident can’t be stretched over years

Satya Prakash

Tribune News Service

New Delhi, September 29

Amid rising incidents of sex on the pretext of marriage, the Supreme Court has ruled that misrepresentation of facts to obtain a woman’s consent for sex has to be close to the incident and not stretched over years.

A three-judge Bench headed by Justice Rohinton F Nariman acquitted a tribal man from Jharkhand who was held guilty of raping a Christian girl after allegedly obtaining her consent for sex fraudulently on the pretext of marriage.

Due to differences between the two families, the man couldn’t marry the woman who went on to file a rape case against her ex-boyfriend, barely a week before he was to marry another woman. The trial court held him guilty of rape and Jharkhand High Court upheld the conviction.

However, the top court set aside his conviction, saying: “We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep­seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.”

Clarifying the legal position, the Bench said, “Under Section 90 of IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.”

It said, “We… are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties,” it said on Monday reversing the Jharkhand High Court’s verdict.

“The prosecutrix (girl) was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her,” it said. 

“They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant,” the top court noted.

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