Supreme Court: Consensual Physical Relationship Is Not Rape

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Adv. Kapil Chandna
Adv. Kapil Chandnahttp://kapilchandna
Advocate Kapil Chandna, law graduate from Delhi University, is a founding partner of Chandna & Chandna Associates and is enrolled with the Bar Council of Delhi in 2012. Kapil Chandna started working independently in 2014 and had represented clients all over India, securing favorable orders for his clients:- Bail (Anticipatory as well as Regular) in Cheating, Forgery, False Dowry Case, Dowry Death, False Rape Case, POCSO, Murder/ Attempt to murder, Prevention of Corruption Act, Money Laundering.

In the case of Dhruvaram Murlidhar Sonar vs The State of Maharashtra on 22 November 2018, Hon’ble Supreme Court of India has clarified that consensual physical relationship cannot be termed as rape.

In the landmark Judgement, Hon’ble Supreme Court of India has demarcated grounds based on which every physical relation cannot be termed as rape and in order to understand decision passed by Hon’ble Supreme Court, it is necessary to understand rape laws in India. 

As per Section 375 of the Indian Penal Code, 1860

“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will. 

(Secondly) — Without her consent. 

(Thirdly) — With her consent, when her consent has been obtained by putting 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 stupe_fying 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.

Basis above, the intention of the legislature is clear that, if a man commits sexual intercourse with a woman without her consent, he is said to have committed rape. Though the term consent is not defined in Indian Penal Code, 1860, However Indian Penal Code had attempted to define what would amount to “no consent” in Section 90 of the Indian Penal Code, 1860 and anything falling within the ambit of no-consent would amount to “without her consent”. Relevant Extract of Section 90 is reproduced as under for better understanding. 

Section 90 Consent known to be given under fear or misconception

Consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; 

or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; 

or Consent of child.—unless the contrary appears from the context if the consent is given by a person who is under twelve years of age. 

Thus, consent-based on “misconception of fact” is not a valid consent in the eyes of law and if a man commits sexual intercourse with a woman under a consent obtained under the misconception of fact he is said to have committed rape on her. 

Hon’ble Supreme Court in Dhruvaram Murlidhar Sonar vs The State Of Maharashtra on 22 November 2018, explained and clarified the term “misconception of fact”. 

Facts

  • Complainant’s husband died on 05.11.1997, leaving behind her and her two children. 
  • Complainant met the accused who informed her that there have been differences between him and his wife, and therefore, he is planning to divorce his wife. 
  • Further, the accused informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage. 
  • Believing the words of the accused, the complainant started living with the accused, and FIR further states that she (complainant) had fallen in love with the appellant and that she needed a companion as she is a widow. Therefore, they started living together, as if they were husband and wife. 
  • Further, both the complainant and the accused acted as if they were married to each other and maintained a physical relationship. 
  • However, when the accused has failed to marry her as promised, soon thereafter complainant received the information that the accused married some other woman. 
  • Finally, the complainant filed an FIR U/S 376 against the accused, alleging that her consent to have physical intercourse is not a free consent but a consent under the misconception of fact.

Issue

The short issue before the Hon’ble Supreme Court was whether the consent as alleged by the complainant in the above-mentioned facts was a result of a misconception of fact i.e the consent was obtained by the false promise of marriage or whether the consent was consensual out of love between the complainant and the accused.

Discussion on Law

In Uday v. State of Karnataka (2003) 4 SCC 46, this Court was considering a case where the complainant, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on the failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. 

It was held thus

“21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the complainant to sexual inter- course 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 meaningof the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the complainant to sexual inter- course is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the complainant was a grown-up girl studying in a college. She was deeply in love with the accused . She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the accused when he proposed to her the first time. She had sufficient intelligence to under- stand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the accused, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual inter- course with the appellant, and her consent was not in consequence of any misconception of fact.”

In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, this Court has distinguished between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been predecided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. 

Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had traveled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused.

Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April 2018, observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together as man and wife. It was held as under:

“In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant.

It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as ‘rape’ especially in the face of the complainant’s own allegation that they lived together as man and wife”.

Thus, there is a clear distinction between rape and consensual sex.

The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between the mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.

Held

In the instant case, it is an admitted position that the accused was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health center and that the is a widow. It was alleged by the complainant that the accused informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused needed a month to get their marriage registered. The complainant further states that she had fallen in love with the accused and that she needed a companion as she was a widow. She has specifically stated that “as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home.” Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other’s company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. 

It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. 

We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since the complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.

Law Laid by Hon’ble Supreme Court in Dhruvaram Murlidhar Sonar vs The State Of Maharashtra on 22 November 2018, is followed in Pramod Suryabhan Pawar vs The State Of Maharashtra on 21 August 2019 while quashing an FIR registered in Section 376(2)(b) of the Indian Penal Code. 


This Article is written by Adv. Kapil Chandna. Advocate Kapil Chandna is a graduate from Delhi University, founding partner of C&C Associates and is enrolled with the Bar Council of Delhi (2012).


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