Granting anticipatory bail to an accused, the Bombay High Court recently reiterated the proposition that every breach of promise to marry cannot amount to rape.
Terming it an “unfortunate but routine case”, Justice Mridula Bhatkar observed, “Initially, a boy and a girl genuinely may want to marry and are true to their emotions and establish sexual relationship, however, after some time, they may find that they are not mentally or physically compatible and one decides to withdraw from the relationship. Under such circumstances, nobody can compel these two persons to marry only because they had sexual relationship. It is necessary to have a healthy, objective and legal approach towards these incidents. There may be moral bonding between the two persons when they indulge into sexual activities with promise to marry and it is also a fact that ultimately women only can remain pregnant and therefore, she suffers more than the man. However, in law, this cannot be labeled in any manner as a rape”
The Court was hearing an application for anticipatory bail filed by Mr. Akshay Manoj Jaisinghani, who was charged with offences under Sections 376 (punishment for rape), 504 (intentional insult with intent to provoke breach of the peace) and 506 (criminal intimidation) of the Indian Penal Code.
The complainant woman, who was an interior designer by profession, had alleged that the consent for sexual intercourse was obtained fraudulently, under the false promise of marriage. The accused had however contended that the sexual relationship was consensual and the consent was not obtained by fraud.
Ordering in favor of the accused, the Court then went on to rely on the judgment in the case of Mahesh Balkrishana Dandane v. State of Maharashtra, wherein it was held that subsequent withdrawal of a bonafide promise of marriage cannot bring an act of consensual sexual intimacy under the purport of offence under section 375 of IPC i.e., rape.
Reflecting upon the circumstances which qualify for rape, Justice Bhatkar thereafter observed, “In a case of rape, the act of sexual intercourse is forcible and without consent of the woman. However, the consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape. For example, if an illiterate woman is given promise to marry and under that promise, her consent is obtained for sexual intercourse, then, it can be said that the consent is obtained by fraud. Similarly, if by hiding the identity or impersonation, consent is obtained, then it is on playing fraud. So also, a married man obtains consent of an unmarried girl under promise to marry by suppressing his previous marriage, then that consent given by the unmarried girl to have sexual intercourse is consent obtained fraudulently and it is no consent. Such and similar instances fall within the definition of rape.”
Read the order here.
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