Rape alleged by an already married woman.

The complainant can lodge FIR in any section as provided in laws in Indian Penal Code;---

375. Rape.- A man is said to commit "rape" who, except in the case hereinafter excepted, has s*xual intercourse with a woman under circumstances falling under any of the six following descriptttions:--

First.-Against her will.

Secondly.-Without her consent.

Thirdly.--With her consent, when her consent has been obtained by pulling her or any person in whom she is interested in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under sixteen years of age.

497. Adultery.- Whoever has s*xual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such s*xual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either descriptttion for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.

in 375 , in the 4thly desciription , """".....that her consent is given because she beleives................................lawfully married "........

refer judgement :

February 12, 2013 Fighting Legal Terror Leave a comment Go to comments

Supreme Court of India

Prashant Bharti vs State Of Nct Of Delhi on 23 January, 2013

Author: J S Khehar

Bench: B.S. Chauhan, V. Gopala Gowda

pls note , some quote fromaforesaid Sc judgement.

It is relevant to notice, that she had alleged, that she was
induced into a physical relationship by Prashant Bharti, on the assurance
that he would marry her. Obviously, an inducement for marriage is
understandable if the same is made to an unmarried person. The
judgment and decree dated 23.9.2008 reveals, that the
complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also
reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two
divorced one another by mutual consent under Section 13B of the Hindu
Marriage Act. In her supplementary statement dated 21.2.2007, the
complainant/prosecuterix accused Prashant Bhati of having had physicalPage 11
11
relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his
residence, on the basis of a false promise to marry her. It is apparent from
irrefutable evidence, that during the dates under reference and for a period
of more than one year and eight months thereafter, she had remained
married to Lalji Porwal. In such a fact situation, the assertion made by the
complainant/prosecuterix, that the appellant-accused had physical
relations with her, on the assurance that he would marry her, is per se false
and as such, unacceptable. She, more than anybody else, was clearly
aware of the fact that she had a subsisting valid marriage with Lalji Porwal.
Accordingly, there was no question of anyone being in a position to induce
her into a physical relationship under an assurance of marriage. If the
judgment and decree dated 23.9.2008 produced before us by the
complainant/prosecuterix herself is taken into consideration alongwith the
factual position depicted in the supplementary statement dated 21.2.2007,
-
it would clearly emerge, that the complainant/prosecuterix was in a
relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the
appellant-accused, while she was validly married to her previous husband
Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the
assertion made by the complainant/prosecuterix, that she was induced to a
physical relationship by Prashant Bharti, the appellant-accused, on the
basis of a promise to marry her, stands irrefutably falsified.

regds,

vick

It is relevant to notice, that she had alleged, that she was
induced into a physical relationship by Prashant Bharti, on the assurance
that he would marry her. Obviously, an inducement for marriage is
understandable if the same is made to an unmarried person. The
judgment and decree dated 23.9.2008 reveals, that the
complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also
reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two
divorced one another by mutual consent under Section 13B of the Hindu
Marriage Act. In her supplementary statement dated 21.2.2007, the
complainant/prosecuterix accused Prashant Bhati of having had physicalPage 11
11
relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his
residence, on the basis of a false promise to marry her. It is apparent from
irrefutable evidence, that during the dates under reference and for a period
of more than one year and eight months thereafter, she had remained
married to Lalji Porwal. In such a fact situation, the assertion made by the
complainant/prosecuterix, that the appellant-accused had physical
relations with her, on the assurance that he would marry her, is per se false
and as such, unacceptable. She, more than anybody else, was clearly
aware of the fact that she had a subsisting valid marriage with Lalji Porwal.
Accordingly, there was no question of anyone being in a position to induce
her into a physical relationship under an assurance of marriage. If the
judgment and decree dated 23.9.2008 produced before us by the
complainant/prosecuterix herself is taken into consideration alongwith the
factual position depicted in the supplementary statement dated 21.2.2007,
-
it would clearly emerge, that the complainant/prosecuterix was in a
relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the
appellant-accused, while she was validly married to her previous husband
Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the
assertion made by the complainant/prosecuterix, that she was induced to a
physical relationship by Prashant Bharti, the appellant-accused, on the
basis of a promise to marry her, stands irrefutably falsified.

i have proof of her marriage . she has daughter 10 yrs of age , her inlaws and father live nearby and they are all alive. she made a NC and dememnded 50,000 and i refused , becoz of which a Chapetr proceeding intiated against me and after intiating chapter , she slapped a 376 on me. i have also won the chapeter case. and have been to jail for 24 days for no faiult of mine.

This is just legal blackmail.

www.mehnat.in

To certain extent our judiciary is over good in giving interpretation to certain simple things. For example 

1. A lady in live in relatioship with a boy for 5 years, boy decides to marry some one else, lady complains that under promise of marriage boy had physical relationship with her for 5 years. case registered under S.376...  There is no rape here.

2. A lady files a case againt a film director under S.376 that he had physical relationhship with her for x  years, promising her a role in movie and he did not give such role to her, case registered under S.376... There is no rape here also.

3. As per Post above

Basically courts are giving over enthusiastic interpretation to consent or lack of consent. In this intellectually lofty use of words, courts treat woman as absolutely dumb and helpless creature. But the truth is far from this. Rape must always be associated with force, lack of consent when the option was there with the girl to say No. In all the three  ases above the females had an option to say NO, so ther is no IPC 376

in fourthly , with her consent , when the man knows that he is not her husband , and that her consent is given because she beleieves that he is another man to whom she is or beleives herself to be lawfully married.

did you see the SC judgement on false rape case by a married woman. in jan 23rd 2013.

The point is why the matter must go up to Supreme Court, by the time it reaches to this level almost everything is finished for man. Our courts take years and once you commit a man as accused for trial in the lower court, he is practically doomed for years, so there should be very strict guidelines at the time of taking cognizance. Apart from forced violation, there could be few categories, i am again writing, as this is prevalent topic..

1. Complaint filed by live in female partner of years, since the male did not marry her.... Absolute no rape case. All such females are educated and have an option to say no to male.

2. Like that film producer case... No rape case.

3. Male violating the maid servant....This is tricky due to poor educational background of maid and also financial need of maid.

4. Senior official with a junior female employee under the promise of promotion/posting: (Recall the case of an MP) : This again must depend on the educational background of the female employee. The mute question: is she intelligent and educated enough to say NO ? If it falls practically as per  point #3 above then its a different matter. Statute must define educational background in absolute terms not in relative term.

5. Consent obtained due to force or blackmail or threat to life to self or relatives: Thats the part of definition.

The point which I am trying to make is promise or contract is between two parties, the contract here may be void in law (male would do so and so in exchange of .......), if mail breaks his promise after getting what he wants from female, then female cannot cry foul, it cannot be rape (subject to absolute intellectual and financial background of female). At the best they can frame a new law, both male and female can be termed as immoral, not fit for certain public posts, but certainly man cannot be prosecuted under S.376.

We have to keep in mind that a criminal offense of this nature cannot be conditional or subjective, like if that film producer had given the role, then it was no rape otherwise rape OR if that live in partner married the female then no rape otherwise rape, OR  if that employer given the promotion/posting then no rape otherwise rape. In fact a not so silly argument can come forward that it is kind of prostitution. Lawmakers should come forward and must acknowledge the need for physical relationship in changing times, must acknowledge the fact  that almost in all straita of society since ages females have been using their charm to get their work done. Must acknowledge the fact that this perenial weakness of man is being used by females world over to get the favors. They must acknowledge that it is not the power of man, but it is shear weakness that he succumbs to this kind of immoral promises. 

Disclaimer: I strongly advocate equality between male and female, I strongly condemn forced rape as happening in our country, guilty must be punished. I am not supporting the immoral promises in exchange of s*x, but what I am stressing that even educated females are equally responsible for this kind of immoral arrangement and if it fails they cannot rush to nearest police station.

The question is assurance of mariage to an already MArried woman means what ?

Even if we go by the Law and admit that even an assurance of marriage is proved otherwise it would be considered Womans statement herself as the most relevant VERBAL Statement that "X" Man had physical relation on assurance of marriage.

Adultery on the part of both man and woman in simple terms. Problem with the law is: word of female, and the new ordnance also does not solve the problem, Hon Justice (retd) Verma  got carried away by the punitive aspect of this issue, has not addressed the issue in totality.

but what is the solution. i have been jailed for 24 days already in this 376 matter. now charge is framed and i have denied . the charge was wheteher i assured the Woman of marriage and had s*xual relations with her and threatened to harm her . i denied. i want to quash. this 376 , can you guide.

Approach high Court under S.482.

Please read the order as cited by you only, frame your petition accordingly, frame it in such a manner:

1. That assuarance of marriage to a married woman has no meaning... see the above order.

2. In such cases scientific evidence cannot be procured.... cite above order

3. get the proof of her subsisting marriage.... cite above order.]

4. Try to get alibi evidence for the dates she would have mentioned.

5. Try to get the proof of her communication indicating her desire towards you... Assess this very carefully with your counsel before using this, (this can be dangerous).

Apart from solidly maintaining your innocence, please argue that even for argument sake it is presumed that whatever she stated happened even then above  points (think of more points) will not stand the scrutiny of law and it is the shear abuse of process of law. Supreme Court has ruled earlier also that High Court under S.482 has the power to quash the proceedings in case incontrovertible evidence (which can make the conviction impossible) is produced by accused.

I have photgraph of her marriage , her child is the proof of her husband , who is alive and lives in Mumbai. this woman stays with her in-laws. She tried to get a fake affidavit made in my name that we are married. that affidavit is photgraphed , signed , thumb impression by her and my foto is affixed and fake signature is done by her. Even when i came out of Jail; and life was shocked , rocked and SHATTERED , she started calling me and threat m that she will slap another 376. i made a police complaint and have a copy of that.