Married Woman Consenting Sexual Intercourse Outside Wedlock 'Immoral' But Not Rape On False Promise To Marry: Punjab & Haryana High Court

The Punjab and Haryana High Court has set aside the conviction of a man in a rape case filed by a married woman who alleged sexual assault based on a false promise of marriage.

Justice Shalini Singh Nagpal said,

“When a fully matured married woman, consents to sexual intercourse on a promise of marriage and continues indulging in such activity, it is merely an act of promiscuity, immorality and reckless disregard of the institution of marriage, not an act of inducement by misconception of fact. Section 90 of IPC cannot be applied in any such case to pardon the act of a woman and the criminal liability on another."

The Court said that an inducement for marriage is understandable if the same is made to an unmarried woman.

Undisputedly, the prosecutrix was a married woman, though she claimed that she was in an unhappy marriage and was in the process of seeking divorce from her husband, it noted.

"This claim of the prosecutrix is false on the face of it, given her admission that she was residing with her in-laws and had never launched any sort of litigation against her husband including divorce petition," said the Court.

While noting her statement regarding sexual intercourse by the appellant 55-60 times during the year 2012-13 is conspicuous by absence of dates and other material particulars, the Court pointed that she admitted that the physical intimacy 55-60 times in the year 2012-13 was in her in-laws' house.

"Clearly, the prosecutrix was in a consensual relationship with the appellant for a period of more than two years during which period, she remained married to her husband. In the fact situation, her claim that appellant had physical relations with her and committed rape upon her on the assurance that he would marry her is per se false and unacceptable," the bench opined.

The Court also remarked that, "The prosecutrix was not a naive, innocent bashful young lady who could not judge the implications of her impulsive decisions. She was a grown- up woman, mother of two children and was ten years older than appellant."

"She was intelligent enough to understand the consequences of the immoral acts for which she consented while her marriage was subsisting," it added.

The Court was hearing an appeal against conviction under Section 376 of IPC and sentence to undergo rigorous imprisonment for a period of 09 years.

The prosecutrix alleged in her complaint that she was a home maker and had strained relationship with her husband, who served in the Indian Army. Due to strained relations, talks of divorce with her husband were going on. It was alleged that she developed intimacy with the appellant on false promise of marriage.

The convict argued that the provisions of Section 225 CrPC were bye-passed by the trial Court on which account, entire trial was vitiated. It was argued that in every Sessions trial, even if it emanated from a private complaint, it was only the Public Prosecutor, in-charge of the case, who had the authority to conduct it. The provisions of Section 225 and 301(2) CrPC were completely overlooked in the present case.

On merits, it was canvassed that Prosecutrix being married could not have been induced by the appellant to agree for physical relations on the pretext of marriage. Infact, the prosecutrix had been betraying her husband, serving in paramilitary establishment and had developed physical relationship with the appellant.

Rejecting the argument on non-compliance of Section 225 CrPC, the Court said , "It is not a case where there has been a denial of full and fair opportunity to the appellant to defend himself. Hence, non-prosecution of the case by a Public Prosecutor should not, in the opinion of this Court, be regarded as an illegality grave enough to vitiate the trial.”

On merits, the Court after examining the submissions opined that, "The appellant was clearly not in a position to induce her to intimacy on the assurance of marriage, that too in her own matrimonial house where her in- laws and children would also be present. The assertion that she was induced into sexual relationship and raped by the appellant on the basis of a promise to marry stands irrefutably falsified."

The judge concluded that, "present is a clear case of a consensual relationship turning sour and could not have been made the foundation for setting the criminal law in motion, to wreak vengeance on the appellant. Though the appellant cannot be regarded as completely innocent in the fact situation, yet such a relationship based on consent cannot be made the foundation of a charge, as serious as one under Section 376 IPC."

In the light of the above the Court allowed the appeal and set aside the conviction.

Mr. R.S. Cheema, Sr. Advocate with Ms. Sumanjeet Kaur, Advocate for the appellant.

Mr. Vikas Gupta, Advocate for respondent No.1. Mr. Jatinder Pal Singh, Sr. DAG, Punjab.

Title: XXXX v. XXXX