Married Woman Consenting To Sexual Relations On Pretext Of Marriage Is Disregard Of Marital Institution, Not Inducement: P&H High Court

The Punjab & Haryana High Court has quashed the FIR lodged filed for committing rape on pretext of marriage, observing that "it is inconceivable that a legally married woman could be induced into a sexual relationship on the promise of marriage."

Justice Shalini Singh Nagpal, "When a fully mature, married woman consents to sexual intercourse on a promise of marriage and continues to so indulge, it is merely a reckless disregard of the institution of marriage, not an act of inducement by misconception of fact. Section 90 IPC cannot be applied in such a case to fasten criminal liability on the petitioner. Clearly and evidently, prosecutrix was in a consensual relationship with the petitioner for a period of over one year, during which period she remained married to her husband."

The judge opined that, it cannot be accepted that prosecutrix acted under the influence of promise made by the petitioner, under misconception of fact, while venturing into unrestrained sexual activity with the petitioner.

"Even if the allegations levelled against the petitioner in the FIR and in the subsequent statement under Section 164 Cr.P.C. are accepted at their face value, it is inconceivable that a legally married woman could be induced into a sexual relationship on the promise of marriage. It appears that over a long period of time, prosecutrix engaged in sexual relationship with the petitioner, suffered an emotional set back, when her real sister got engaged with the petitioner and as a backlash got the case registered," the Court added.

The Court was hearing the plea to quash FIR under Sections 376(2)(n), 406, 506, 509 read with Section 34 Indian Penal Code and Sections 406 and 509 IPC.

The prosecutrix was married, a lawyer by profession and having matrimonial dispute with her husband, alleged that the accused, also a lawyer  entered into sexual relationship with him on pretext of getting married and the same was also encouraged by her family. However later after encouraging her to have relationship with the accused, her father, mother and brother solemnized engagement of her younger sister with him, she added.

After examining the records and submissions, the Court deduced following inferences:

(i) That at the time of occurrence, the prosecutrix was a mature, married women around 35 years of age, with an eight years old child;

(ii) She was highly educated, having completed law in the year 2019 and was practising as an Advocate in the Courts.

(iii) Prosecutrix levelled serious allegations against her own father, mother, sister, husband and one person, all of which were found false during investigation;

(iv) Petitioner and his father were counsels of the prosecutrix in case bearing FIR under Section 498-A lodged by the prosecutrix against her husband.

(v) In her first version to the police, stance of the prosecutrix was that her parents, brother, sister and petitioner's father encouraged her to have sexual relationship with the petitioner on the pretext of marriage.

(vi) It was also her stance that father of the petitioner had assured marriage when she told him that she would have sexual relations with his son, only if he married her.

(vii) The FIR does not give any date and time of the commission of alleged offence under Section 376 IPC by the petitioner.

(viii) Prosecutrix did not say in her first complaint that petitioner had sexual intercourse with her on the promise of marriage, though, in her improved version under Section 164 Cr.P.C. recorded before the Magistrate, she stated that on 21.07.2020 to 12.10.2020, accused committed rape with her on the promise of marriage.

The Court found that, "Prosecutrix being an Advocate, was well aware that she had a subsisting valid marriage with her husband . Petitioner too is an Advocate, prosecuting cases against the husband of the prosecutrix. There was thus no question of the petitioner being in a position to induce her into a physical relationship under an assurance of marriage. The first version in the FIR, regarding sexual intercourse by the petitioner is conspicuous by absence of dates and other material particulars."

It also noted that, Petitioner has also been booked under 506 IPC and the only allegation with regard to the offence under Section 506 IPC is that when prosecutrix confronted the petitioner regarding his engagement with her sister Rinku, he threatened her with death and dire consequences.

"The allegation is conspicuous by absence of specific dates, time and place where the alleged threat was extended. The exact words allegedly uttered by the petitioner have not be disclosed, in absence whereof, it is not possible to infer as to whether the petitioner indeed had the intention to criminally intimidate the prosecutrix," it added.

Consequently the Court quashed the FIR lodged under Sections 376(2)(n) and 506, 180 IPC.

Mr. Vaibhav Sharma, and Mr. Harit Narang, Advocates for the petitioner.

Ms. Kanica Sachdeva, DAG Haryana.

Mr. Eeshan Garg, Advocate for respondent No. 2/complainant.

Title: SXXXX v. State of Haryana [CRM-M-42307-2021]