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The Supreme Court had to draw a distinction between the breach of mere promise to marry and a false promise to marry with a notion of satisfying lust. The Hon’ble Bench of the Supreme Court comprising Justice AK Sikri and Justice Abdul Nazeer observed the following:
“Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.”
In the Instant case, the complainant is a widower who lost her husband in 1997. An FIR had been registered against the accused-appellant for the offence. The accused was a medical officer in the same establishment wherein the complainant was a nurse. After the complainant's husband passed away, the accused informed the complainant about his willingness to divorce his wife on account of conflicting differences between them. Further, he said that since they belong to different communities, registration of marriage would take one month.
Subsequently, the appellant and the widow complainant started to live with each other, sometimes in the Government quarters allotted to the former, and sometimes in the latter’s place. The FIR stated that the complainant had fallen in love with the appellant, and he acted as if he has married her but failed to marry her eventually. The complainant received information from the appellant’s brother, who is also co-accused in the case, that the appellant married some other woman.
As a consequence of all these, the complainant filed an FIR charging the accused for rape. Therefore, the court had to examine the consent part provided in section 375 of the IPC. The Court said that inferences on consent could be drawn only through evidence or probabilities of the case, and the consent implies active will of the person to perform an act. It was imperative to decipher consent for consensual sex and rape in the context of a promise to marry.
Based on the scrutiny, the court observed that if the appellant had intended to make a false promise for the satisfaction of his lust, it would amount to cheating. In the instant case, the appellant has not shown any indication of promise to marry with an intention to engage the complainant in sexual intercourse with him. If the prosecutrix has consented to sexual act out of love and passion, it shall not amount to rape before the eyes of the law. In certain other cases wherein the appellant is inevitably out of control, or in such circumstances which result in a failure of marriage despite intending to marry, the court must apply different treatment.
The Court reiterated that the existence of malafide intention and clandestine motives is imperative to constitute rape. Until the complainant became aware of his marriage with some other woman, she did not lodge complaint. Prior to the marriage, the appellant and the complianant had been enjoying their time with each other without any conflicts. Therefore, the complainant engaged in the performance of sexual acts after active application of her mind, and not because of any psychological pressure from the appellant. The tacit consent given by her was not because of the misconception on her mind.
In light of the above, the court set aside the order of the Bombay High Court and quashed the FIR registered against the appellant.
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