“Rape Law Misused As A Weapon By Females Upon Differences With Male Counterpart”: Uttarakhand High Court

The Uttarakhand High Court has recently quashed pending criminal proceedings against a man for allegedly having sexual intercourse with a lady for decades on the false promise of marriage.

While disapproving the continuance of such case, the Single Bench of Justice Sharad Kumar Sharma observed,

“In fact, the offence under Section 376 of the IPC as of now in this modernised society is being misused as a weapon by the females to be misutilized, as soon as there arise certain differences between herself and her male counterpart, and rather it is being used as a weapon to duress upon the other side for a number of undisclosed factors, and it cannot be ruled out, that the provisions contained under Section 376 of the IPC are being rampantly misused by the females.”

Factual Background

The complainant had been in a love relationship with the applicant since 2005 and their relationship had gone to such an extent that they had assured each other of marriage. Under this pretext, they had developed physical relationships which continued for decades.

Subsequently, the applicant got married to another lady, but even after that, the physical relationship between the applicant and the complainant did not come to an end, rather they continued the same.

However, after a few years in 2020, the complainant lodged an FIR against the applicant alleging that he raped her on the false promise of marriage. A criminal proceeding ensued such complaint and being aggrieved by the same, the applicant approached the High Court praying to quash the pending proceedings.

Court’s Observations

The Court was of the considered opinion that when the complainant had voluntarily continued physical relationship even after knowing fully well that the applicant has married to another lady, the element of consent imbibes into it.

The Court further noticed that though she kept such sexual relationship with the applicant for years together after his marriage, but never complained of commission of rape until the registration of this FIR.

“In that eventuality, it will not be an offence under Section 376 of the IPC, because apart from the fact, that it has continued for decades together, it had even continued knowingly even after the marriage of the present applicant,” the Bench opined.

The Court said that the consent obtained under the pretext of marriage has to be determined by having regard for the truthfulness or falsity of the assurance for marriage as was given at the initial stage of sexual relationship and not later on.

“…considering the gravity of the offence under Section 376 of the IPC, though apparently, it seems to be a social menace, which is normally levelled against a male, but then, we have to simultaneously balance the equity or and also look into the aspect of the contribution or the active role played by a female for commission of the offence under Section 376 of the IPC,” it added.

The Court relied upon the decision of the Supreme Court in Deepak Gulati v. State of Haryana, wherein it laid down the modalities to test the implied or express consent in order to determine as to whether that would be a valid ‘consent’ within the ambit of Section 375 of the IPC.

“The consent itself could be, when there is an absence of coercion or a misguidance being extended to the opposite party, but when the consent is implied and accompanied by a positive deliberation of mind, and it is weighed in the balance of the aptitude of the applicant involved in the commission of offence with the opposite sex, there would be a clear distinction between rape and consensual sex, and it is in a case like this, where the Court has very carefully said that at the time of considering the basic factors of the offence under Section 376 of the IPC, the Court will have to carefully examine whether the accused actually wanted to marry the victim or had mala fide motives,” the Court added.

Considering the aforementioned position of law, the Court concluded that the applicant cannot be impleaded in criminal charges especially when the complainant consented for continuing physical relationship even after the marriage of the applicant. The Court found such act of the complainant to be a valid consent. Accordingly, the pending criminal proceedings were ordered to be quashed and set aside.

Case Title: Manoj Kumar Arya v. State of Uttarakhand & Anr.

Citation: 2023 LiveLaw (Utt) 11

Case No.: Criminal Misc. Application No. 79 of 2021

Date of Judgment: July 05, 2023

Counsel for the Applicant: Mr. Raj Kumar Singh, Advocate

Counsel for the Respondents: Mr. T.C. Agarwal, Deputy A.G. for the State; Mr. Pankaj Singh Chauhan, Advocate for the private respondent

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