The Allahabad High Court recently refused to quash a rape case against a man, stating that the accused putting vermilion on the complainant woman's forehead conveyed his promise/intention to marry her (Vipin Kumar v. State of Uttar Pradesh).
The orders said in the present case, as far as intention and motives are concerned, they will be subject to final scrutiny during the trial, but prima facie, two facts namely, knowledge of family traditions of the applicant and another act of the applicant to smear head of the prosecutrix with vermilion, which is not only significant in the Hindu rituals and customs but also a lot of significance as an intention to show that the person smearing the vermilion has accepted the other person as his spouse.
The Court was hearing an application moved by one Vipin Kumar seeking quashing of a summoning order dated December 22, 2020, passed by the Chief Judicial Magistrate at Shahjahanpur in a rape case.
The petitioner had also sought quashing of the charge sheet and the entire proceedings of the said case on the ground that the complainant/victim had consensual sex with the accused.
It was alleged that Kumar, working with the Border Road Organization, had sent a friend request to the victim on Facebook. After some hesitation, when the victim came to know of the fact that the accused was known to her through a common acquaintance, she accepted his request and they started communicating.
Later on, under the garb of contracting marriage, she was called to Hardoi from where they traveled to Lucknow. In a hotel room, the accused allegedly established a physical relationship with her after promising to marry her as soon as he resumes his vacation after joining at his workplace. The victim had reluctantly agreed to such a physical relationship, the FIR alleged.
Later, Kumar allegedly refused to marry the victim on the ground that women from Kumar's family were already married into the family of the woman, and that they thus could not have a woman from that family.
It was submitted by the Additional Government Advocate that the accused had performed a ceremony, which though symbolic, has a lot of significance under the Indian tradition and customs i.e. 'Maangbharai'.
The Court accepted this, observing that the act of the applicant of carrying out the Maangbharai ceremony was proof of the fact that he entered into a physical relationship on the solemn promise of entering into wedlock.
The Court said that to establish whether consent was vitiated by a “misconception of fact” arising out of the promise to marry, two propositions must be established: First, the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. Second, the false promise itself must be of immediate relevance or bear a direct nexus to the woman's decision to engage in the sexual act.
The court said that the day when the applicant made a promise (to marry), he was aware of the fact that as per his family tradition, he will not be able to marry the girl with whom he is making a promise to marry for extracting a favor of the physical relationship. Secondly, the act of the applicant of carrying out a ceremony is another proof of the fact that he entered into a physical relationship on the solemn promise of entering into wedlock, whereas from the beginning, the applicant was aware that as per his family traditions and customs, he will not be able to marry the girl in question.
It, therefore, refused to quash the summoning order passed by the court below.