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- Special issues
[dropcap]T[/dropcap]HE Madhya Pradesh High Court has quashed a rape case against a man on the ground that the complainant had granted her consent for sex even after knowing that the man was not in a position to marry her.
"The prosecutrix was deeply in love with the applicant and she continued to have a physical relationship with him …. Therefore, the prosecutrix cannot be held to turn around and claim that the consent was based on a misconception of the facts," a single-judge bench of Justice S K Awasthi said.
The Court relied on the statement of the woman recorded under Section 164 of CrPC and held that it was evident that the two parties had fallen in love in 2010 when she was about 28 years old and fully aware of the consequences of her actions.
"She was also a divorcee; therefore, it cannot be said that she was immature and was oblivious of the fact of life. She also knows that the applicant is already married and there is a bleak possibility of their marriage. Under these circumstances, it cannot be considered that she was unaware of the immorality of the acts she had consented to, and she been presumed to be fully understanding the nature and consequences of sexual acts, she had submitted to," the judge said.
Observing that she had had the freedom to resist or assent and that she had consciously elected to exercise the latter, the court said: "it cannot be said that her consent was obtained by a misconception of fact or by misrepresentation".
The court also referred to the Supreme Court judgment in Dr Dhruvaram Murlidhar Sonar vs The State of Maharashtra & Ors where the apex court made a distinction between the rape and consensual sex, holding:
"There is also a distinction between the mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC".
