Sex on the false pretext of marriage
vrinda
(Querist) 03 July 2013
This query is : Resolved
one of my patient was in a relationship with a boy and they had sex on the promise of marriage from the boy.the boy even introduced the girl to his family and he assured her that they liked her and have no objections for marriage. but now the boy got some other marriage proposal and after that he started avoiding the girl and when she counter questioned him that why did he had sex with her on the pretext of marriage and now why isn't he taking a stand, he said that he has told his family about their physical relationship and his family says that you don't have to worry about her as she is a girl she wont take any action against you since doing that may jeopardise her and her family reputation. when the girl told about this to her family, instead of supporting her they asked her to shut the matter.the girl feels sexually exploited and helpless at present as she is looked down by his own family members. what can be done in such a case? also I would like to raise a question here, why even after so much awareness and education there is still no space for a female to take any action upfrontly against such fraud as she is afraid that by doing so she may jeopardise her reputation? she lost her virginity that will affect her future relationship, why only she is the sufferer? the boy didn't took a stand and exploited her sexually on the promise of marriage but still living a very dignified life. what kind of justice is this? is it the laws or our society's mind set? at present what can the girl do?
Dr V. Nageswara Rao
(Expert) 03 July 2013
1. First legal question: The Courts have not been very clear on the question whether having sex on promise to marry amounts to rape.
2. In Uday v. Karnataka , the Supreme Court observed:
"…consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code."
3. Two days back the Apex Court is reported to have given a different opinion.
4. My opinion is that sex in such cases is consensual and it is not rape as both are majors and she ought to know the consequences of premarital sex.
5 The girl can sue the boy for breach of promise to marry in a Civil Court. The Court can, if promise is proved, award damages to the girl for breach of contract. The Court will never order the boy to marry her in that case.
6. If it is the girl who promises to marry the boy and has sex with him and goes back on that promise what is the remedy in Criminal Law for the boy?
Dr J C Vashista
(Expert) 03 July 2013
Since it is a consensual intercourse between two adult persons,where both the persons had sex knowing, it is not rape.
Devajyoti Barman
(Expert) 03 July 2013
It would depend upon the interpretation of court.
Most of the high courts treat this to be rape.
Nadeem Qureshi
(Expert) 03 July 2013
Delhi High Court
Abhishek Jain vs State on 7 June, 2013
* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 06.06. 2013
% Date of Decision: 07.06.2013 BAIL APPLN. 926/2013 & Crl. M.A. 1116/2013 (Interim Bail) ABHISHEK JAIN ..... Petitioner Through: Mrs. Jyoti Singh, Sr. Adv. with
Mr. Manish Jain, Mr. Ankur
Garg, Mr. Sougata Ganguly, Mr.
Deepak Bansal and Ms. Saaila,
Advs.
versus
STATE ..... Respondent Through: Mr. Mukesh Gupta, APP for the
State.
CORAM:
MR. JUSTICE R.V. EASWAR
JUDGMENT
R.V. EASWAR, J.:
This application under Section 438 of the Cr.P.C. has been filed by one Abhishek Jain in case FIR No.128 of 2013 registered in PS Saraswati Vihar, North West District under Section 376/420/506/34 of the Indian Penal Code.
2. The application has been filed in the following circumstances. The complainant, Nirmal Kaur alias Neha Gabree, is aged 24 years and is working as Assistant Accounts Manager in a firm in Delhi. She got married to the applicant on 4.3.2013 in the Arya Samaj Mandir Trust. The marriage was also registered by the Registrar of Hindu Marriages, Ghaziabad on 4.3.2013. Bail Appln.926/2013 Page 1 of 7 On 30.3.2013 the complainant filed a FIR against her husband Abhishek Jain, the applicant herein, stating that he raped her on the false pretext of marriage and also threatened to kill her. She referred to her earlier complaint dated 25.2.2013 where she had stated that Abhishek Jain was having an affair with her for more than two years before the marriage and that during that period, he had raped her several times in the false pretext and promise of marrying her. She also alleged that even after marriage he continued to torture her and physically abuse her. Action was therefore requested to be taken against the applicant/accused.
3. Apprehending arrest, the accused has filed the present application for anticipatory bail, the bail application filed by him before the Additional Sessions Judge having been dismissed by order dated 25.4.2013.
4. I have considered the facts and the rival contentions. The complainant filed a complaint earlier on 25.2.2013 with the SHO, Rani Bagh Police Station, Delhi. In that complaint she had stated how on several occasions before the marriage the applicant had raped her, after falsely promising to marry her. However, on 4.3.2013 the applicant and the complainant actually got married and there is evidence in the form of the certificate given by the Arya Samaj Vivah Mandir Trust, Ghaziabad and the certificate of registration given by the Registrar, Hindu Marriages, Ghaziabad. Both the certificates are Bail Appln.926/2013 Page 2 of 7 dated 4.3.2013. The FIR also narrates the physical abuse which the complainant had suffered in the hands of the applicant after the marriage and that because the parents of the accused did not accept the marriage of their son with the complainant, the accused stayed away from them in a rented house in Rohini. The FIR further narrates that the accused even used to tell the complainant that "he had married me only to make me withdraw my complaint." Apparently the accused had even lied about his job; he in fact did not have any job and was dependant on the complainant to meet the household expenses. He was also demanding money from her every now and then. Several instances are narrated in the FIR about the threats and physical abuse suffered by the complainant not only from the applicant but also by his family members who had conspired together to cheat her and get her married to him only to make her withdraw the complaint of rape against him.
5. The above specific averments in the FIR are grave. It is not clear to me why the applicant abused the complainant and inflicted physical injuries upon her by beating her if he really loved her and got married to her. The complaint dated 25.2.2013, a copy of which is on record, cogently narrates the long relationship which the complainant and the applicant had before their marriage during which time, as narrated by the complainant, the accused raped the complainant several times after falsely promising to her that he will marry her. Having sexual relations with a woman against her will or without Bail Appln.926/2013 Page 3 of 7 her consent also amounts to rape under section 375 of the IPC. If the consent was obtained on a false assurance or promise of marriage, the consent cannot be considered to be full and free and it would be a case of rape. This is what appears to have happened to the complainant before the marriage took place on 4.3.2013. The complaint also contains reference to an occasion when the complainant was taken to a lady doctor at Shalimar Bagh for check up and treatment of pregnancy. There is also reference to the fact that the accused had threatened her that he has taken photographs while they spent time in a hotel at Gurgaon and that he would put those photographs on the internet and ruin her character for life and that then she will be left with no option but to commit suicide. When the complainant filed a complaint on 25.2.2013 containing such serious allegations against the applicant, it was natural for him to think that marrying the complainant would leave her with no option but to withdraw the complaint. The marriage was therefore gone through only as a means of making the complainant withdraw her complaint. This is what actually happened and on the very next day of the marriage i.e. on 5.3.2013; a hand written letter was filed with the SHO by the complainant that she is withdrawing her complaint dated 25.2.2013. In these circumstances it would be naïve to think that the marriage was a solemn "samskara" entered into between the parties as a union for life.
6. The learned counsel for the applicant contended that the FIR was Bail Appln.926/2013 Page 4 of 7 instigated because the parents of the accused had disowned him and disinherited him from their property. I am not prepared to accept the contention. The FIR and the earlier complaint contain reference to the family members of the accused, including his parents, threatening and abusing the complainant. If they had disowned him, they could not have come to his aid and support to such an extent; that throws considerable doubt on the credibility of the alleged "disowning" of the accused by them.
7. The learned counsel for the applicant referred to two judgments of this Court. The first is the judgment dated 22.5.2013 of Kailash Gambhir, J in Bail Appln.311/2013 (Rohit Chauhan Vs. State NCT of Delhi). That was also a case of an FIR registered under sections 376/506/328 of the IPC. There, on the facts of the case, the learned Judge was not prepared to accept that the accused committed rape of the prosecutrix. There were peculiar circumstances in that case, as a reading of the judgment would show. There the prosecutrix was, in the words of the learned Judge, "quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of men which is evident from the photographs placed on record, which have not been denied by the prosecutrix present in court. She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time. As per the prosecutrix, she had a physical relationship with the petitioner for the last more than 2 ½ years and it is not just a single act of sharing physical intimacy but the same continued Bail Appln.926/2013 Page 5 of 7 for almost a long period of three years. There lies a possibility that the petitioner might have then refused to marry the prosecutrix and this refusal on the part of the petitioner gave a serious jolt to the prosecutrix who then with the help of police, solemnized the marriage with him, in the wee hours of the night when petitioner was in his casual apparels (track suit). It is only on 30.01.2013, that the complainant raised her voice for the first time and made allegations of rape against the petitioner. It is an admitted case that the said marriage ultimately did not consummate as the complainant was never brought to the matrimonial home and the petitioner has already filed a civil suit to seek decree of declaration for declaring the said marriage as null and void."
The above and the general observations made by the learned Judge in paragraph 14 of the judgment have to be understood in the light of the facts of that case and do not constitute the ratio decidendi. The other judgment is Jagdish Nautiyal Vs. State 2013 1AD (Delhi) 475. In that case the learned Judge (V. K. Shali, J) held that unless and until there is an imminent and great imperative to have custodial interrogation of the accused, the anticipatory bail should be granted. It was further observed that even assuming that the allegations in that case against the bail applicant were correct, at best a case of consent of the complainant for contracting marriage having been obtained by fraud or misrepresentation would be made out, and that does not require any custodial interrogation. Each case is decided in the background of the facts of that particular case and there can be no general proposition that in all cases where the complainant says that her consent was obtained by fraud or Bail Appln.926/2013 Page 6 of 7 misrepresentation, custodial interrogation of the accused would not be necessary. Again the observations in the cited decision need to be appreciated and understood on the basis of the facts and circumstances of that case.
8. The facts of the present case are tell-tale. It would prima facie appear that the marriage was gone through only to persuade the complainant to withdraw her complaint dated 25.2.2013. Immediately after the marriage the applicant started physically abusing the complainant, apparently, in the hope that she would leave him, but when she filed a complaint, the accused was forced to apply for bail. The joint statement made before the sessions court was only to the effect that they were married, and nothing more. The efforts towards mediation failed and the sessions court referred the matter to the assigned court which dismissed the bail application. Even before me, the complainant who appeared stated that she was not willing to go for mediation.
9. For the above reasons I do not find any merit in the anticipatory bail application. The same is rejected. All pending applications also stand disposed of.
R.V. EASWAR
(VACATION JUDGE)
JUNE 07, 2013
prabhakar singh
(Expert) 03 July 2013
Courts are often doing so but they should not do so in each and every case.
A lot of circumstantial backgrounds are required to be looked into to arrive at such kind of a conclusion otherwise every intercourse would start amounting to rape.
There appears to be a great word call CONSENT which should BE FREE is the ESSENCE.
But in the way of it's test we or system should not become a party due to some preoccupation of giving patronage in the name of weaker section of society to each and every lady.Of course there are ladies
still in society who can be exploited on this score even in this advance era and they do need and deserve patronage of system for equity sake which is the essence of justice.
BRIJENDRA K SINGH
(Expert) 03 July 2013
I am total agree from Dr V. Nageswara Rao.
As per question "she lost her virginity that will affect her future relationship" go to the Chandigarh medical consultant for restoration of virginity for future life not go for claim because you cant get any thing but you will loose your dignity in social life. Court may be rely on this also. And she will face questions which will give bad impact on her life.
Put some efforts to give ethics to her to not to go or attract from western culture.
R.K Nanda
(Expert) 03 July 2013
not a rape case.
Dr V. Nageswara Rao
(Expert) 03 July 2013
1.In the present case, in the beginning the man did have an intention to marry her as he introduced her to his parents etc.
2. So the sexual relations did not take place on any false or fraudulent misrepresentation by him.
3.If he went back on his agreement with her, that amounts to breach of promise to marry and the remedy for her is to sue him contract.
4 Not a rape case at all.
5 While no one will justify young men cheating girls by false promise to marry, a woman of majority should not be allowed to raise moral issues after she made her "character' a commodity as barter in the bargain for marriage.
6.Do we want India also become like the following recent cases?
7.In the case involving the wikileaks fame journalist Julian Assange (consent given by woman on the condition of use of condom), it was held that choice is crucial to the issue of consent. Assange v. Swedish Prosecution Authority [2011] EWHC 2849. In the recent decision of R (F) v Director of Public Prosecutions, [2013] EWHC 945 (Admin), it was held that the decision of the Prosecution not to prosecute the accused would be subjected to judicial review because in that case “the claimant consented on the clear understanding that the intervener [the accused] would not ejaculate within her vagina. She believed that he intended and agreed to withdraw before ejaculation. The intervener knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him… In law, this combination of circumstances falls within the statutory definition of rape….” She was held to have consented to penetration but not to ejaculation in vagina. Also, R(F). v. DPP, [2013] EWHC 945 (Admin). In R v EB [2006] EWCA Crim 2945, [2007] 1 WLR 1567, the Court held that failure to disclose that the accused was suffering from HIV+ did not amount to rape as “the act remains a consensual act” (ibid., para. 17) but, in R v McNally, [2013] EWCA Crim 105, para. 24, it was observed that R. v. EB did not mean that the consent is not vitiated where “the complainant had been positively assured that the defendant was not HIV positive.” In R. v. McNally, the Court held that where the accused, a female deceived another female that she was a male and had oral and dildo sex, the consent was vitiated by misrepresentation as to gender. (Ibid., para. 27).
