If victim of alleged offence of rape is not under 18 years of age, maintaining sexual relationship with her consent is not an offence: SC quashes rape case after finding relationship was consensual
Justices Abhay S. Oka & Pankaj Mithal [30-01-2024]

Read Order: SHEIKH ARIF VERSUS THE STATE OF MAHARASHTRA & ANR [SC- CRIMINAL APPEAL NO. 1368 OF 2023]

LE Correspondent

New Delhi, February 1, 2024: The Supreme Court has quashed a rape case after noting the fact that the woman and the accused-appellant got engaged earlier and it was impossible to accept that the victim allowed the physical relationship to be carried on for four years on the basis of a false promise to marry.

The facts of the case pertained to an FIR registered against the appellant at the instance of the second respondent for the offences punishable under Sections 376(2), 377, 504, 506 of the Indian Penal Code (IPC) and various clauses of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989. The said complaint disclosed that the appellant and second respondent got acquainted with each other in the year 2011. The allegation made by the second respondent was that an effort was made in the year 2011 by the appellant to maintain a physical relationship with her, but she prevented him from doing so. However, she stated that in the year 2012, by giving a false promise of marriage, the appellant had sexual intercourse with her on a number of occasions. As the second respondent got pregnant, the appellant took her to a hospital where abortion was done. Even thereafter, the appellant continued his physical relationship with the second respondent.

Both of them got engaged in 2017 and physical relationship continued between them. After getting pregnant again, the victim did not undergo an abortion as the appellant promised that they would get married soon. She alleged that she saw photographs of the engagement ceremony of the appellant with another woman in his cell phone and a day before the date on which the complaint was filed, she was informed that the appellant had married another girl.

It was the case of the appellant that there was a Nikah between him and the second respondent. It was his case that he could not produce the original Nikahnama, but a copy thereof was seized by the police. It was also submitted that the name of the second respondent appeared as the wife of the appellant in the passport issued to the appellant. It was also urged that the relationship between the appellant-accused and the second respondent was always consensual.

On the contrary, the counsel appearing for the State as well as the second respondent relied upon Anurag Soni v. State of Chhattisgarh and submitted that even if it was assumed that the second respondent gave consent for maintaining a physical relationship, the same was vitiated by fraud and misconception. It was contended that though the Investigating Officer repeatedly called upon the appellant to produce the original Nikahnama, he did not submit the same, and therefore, an adverse inference would have to be drawn against the appellant. It was also urged that the issues raised could be gone into only in the trial.

The appellant had volunteered to deposit a sum of Rs 10 lakh with the High Court during the pendency of the petition before the High Court. However, the settlement between the appellant and the second respondent could not materialise.

The issue before the Division Bench of Justice Abhay S. Oka and Justice Pankaj Mithal was whether a case for quashing the criminal proceeding was made out. The Bench, at the outset, said, “In view of the provisions of Section 375 of the IPC, if the victim of the alleged offence of rape is not under 18 years of age, maintaining a sexual relationship with her consent, is not an offence. As held by this Court in the case of Anurag Soni, if the consent of the victim is based on misconception, such consent is immaterial as it is not a voluntary consent. If it is established that from the inception, the consent by the victim is a result of a false promise to marry, there will be no consent, and in such a case, the offence of rape will be made out.”

Noticing that the second respondent was admittedly more than 18 years old when the relationship commenced, the Bench opined that it was impossible to accept that the second respondent allowed the physical relationship to be maintained with her from 2013 to 2017 on the basis of a false promise to marry as the averments made in her complaint showed that their physical relationship started in 2012. Though she claimed that it was a forced relationship, she did not make any grievance about it till February 2018. In 2013, the relationship resulted in pregnancy. Still, it continued till 2017 and they also got engaged in the same year.

On a perusal of the records, the Bench observed that the physical relationship between the appellant and the second respondent was consensual, at least from 2013 to 2017. The fact that they were engaged was admitted by the second respondent and she also participated in the engagement ceremony without any protest. However, she had denied that her marriage was solemnised with the appellant. “Taking the prosecution case as correct, it is not possible to accept that the second respondent maintained a physical relationship only because the appellant had given a promise of marriage”, the Bench added.

The Top Court came to the conclusion that the continuation of the prosecution in the present case would be a gross abuse of the process of law and no purpose would be served by continuing the prosecution.

Considering the fact that the appellant had accepted that the second respondent was his legally wedded wife and the child born to the second respondent was his child, the Bench held, “We, therefore, propose to direct the appellant to pay a sum of Rs. 5 lakhs to the second respondent. This will be without prejudice to the right of the second respondent to claim maintenance for herself and for her daughter from the appellant in accordance with law. We propose to direct that the amount of Rs 10,00,000 already deposited by the appellant with the High Court shall be invested appropriately till the child attains majority.”

Thus, quashing the impugned judgments, the Bench directed the appellant to deposit a further sum of Rs 5 lakh with the Sessions Court at Nagpur within a period of six weeks.