The Supreme Court, in its judgment acquitting a man accused of raping a woman on the pretext of marriage, observed that misconception of fact arising out of promise to marry has to be in proximity of time to the occurrence and cannot be spread over a long period of time coupled with a conscious positive action not to protest.
The allegation by the Prosecuterix in this case was that the accused Maheshwar Tigga has been promising to marry her and on that pretext continued to establish physical relations with her as husband and wife. It was also alleged that she had also stayed at his house for fifteen days during which also he established physical relations with him. The Trial Court convicted him under sections 376, 323 and 341 of the Indian Penal Code. The Karnataka High Court dismissed his appeal.
While considering his appeal, the bench comprising Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee noted that in this case, the accused belonged to the Scheduled Tribe while the prosecutrix belonged to the Christian community. The Court also said that the letters between them, which were produced as Exhibits makes it apparent that their love for each other grew and matured over a sufficient period of time. In this context, the bench said:
"They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross examination that no incident had occurred on 09.04.1999."
The court also said that, these letters would show that the accused was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons, the marriage could not materialize as they belonged to different communities, it said. The court said that Section 375 would apply only if the accused intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact. It added:
"Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her."
In this context, the bench referred to two recent judgments: Dhruvaram Murlidhar Sonar vs. State of Maharashtra AIR 2019 SC 327 and in Pramod Suryabhan Pawar vs. State of Maharashtra (2019) 9 SCC 608 . While acquitting the accused, the bench further observed:
The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant's family was always very nice to her.
the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.
Case no.: CRIMINAL APPEAL NO. 635 OF 2020 Case name: MAHESHWAR TIGGA vs. THE STATE OF JHARKHAND Coram: Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee Counsel: Sr. Adv V. Mohana, Adv Pragya Baghel
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