A man cannot be convicted for rape simply because he violates a promise of marriage he might have made before having sex, the Indian Supreme Court held.
A bench of Justice Arijit Pasayat and Justice DK Jain, however, held that a woman's consent is vitiated if the man makes representation of marriage "deliberately" to "elicit" the fairer sex's assent for an intercourse.
To accuse a man of rape, it is necessary to establish that at the very inception of making a promise to marry, he did not really "entertain the intention of marrying the woman" and that the promise was a mere hoax. "Then the consent ostensibly given by the victim will be of not avail to the accused to exculpate him from the ambit of Section 375 (rape) of the Indian Penal Code (IPC)," the bench observed.
The bench's remarks came on a petition filed by Pradeep Kumar against the order of Patna High Court that had rejected the man's plea to discharge him in a rape case.
Kumar was accused of raping a woman who on the assurance of a marriage agreed to have sexual intercourse with him. The victim lodged the complaint when it was announced he was to wed somebody else.
Kumar had approached the Patna high court against a trial court's order of framing rape charges against him. The high court dismissed his application after passing a summary order. Without commenting on the merits of Kumar's case, the Supreme Court referred it back to the high court, asking the latter to deal with it appropriately.
The bench clarified: "The court has to see whether the person giving the consent has given it under fear or misconception of fact. The court should also be satisfied that the person doing the act, the alleged offender, is conscious of it."
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