Bombay High Court says consent given under misconception of fact for sex cannot be considered free one

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The Nagpur Bench of the Bombay High Court denied to cancel an FIR against a man accused of rape by a woman he had sexual relations with after promising to marry her, on the grounds that “misguided” consent cannot be considered a free one.

A bench of Justices AS Chandurkar and GA Sanap opined that sexual intercourse against the will of the complainant by obtaining her consent under the promise to marry could not be said to have been given freely.

Maharashtra cops lodged charges against a man on a complaint filed by his former fiancee, after being deserted by him. She charged the Bhandara man of establishing physical contact with her at a jungle resort on the promise of marrying her soon.

“Facts stated in the FIR and the petitioner’s conduct clearly show that his intentions were sinister. He established sexual intercourse against the survivor’s will by obtaining her consent under a promise to marry. Such consent cannot be said to be free consent. The consent given under the misconception of fact is not a free one,” a division bench comprising Justice Atul Chandurkar and Justice Govinda Sanap held.

Advocate JB Gandhi, representing the accused, told the court that after the engagement, the man found that the woman was not interested in him. She used to quarrel with him on small issues. He claimed there were compatibility issues between the two. He alleged that she used to be suspicious of the smallest thing and that he found it difficult to spend his entire life with her.

Advocate SV Deshmukh, the counsel of the complainant, told the court that a friend of the man used to call her and she even handed over a transcript of the conversation. In her complaint, the complainant stated that the accused established sexual relations with her under the false promise of marriage, and then by refusing to marry her, had cheated her.

Observing the petitioner’s act of coition was not a simple case of cheating, the bench said it was coupled with the serious offence of rape. “It can be gathered on the basis of material that the accused had hidden his intention of not marrying the girl once his sexual lust got satisfied,” the judges said. 

The intention of an accused to commit an offence in such cases should be gathered from the totality of facts..., the bench added. “Looking at the facts of the case from any angle, it shows that this is not a fit case to quash FIR,” the judges said.

The complainant alleged that on Feb 22, 2021, she got engaged to the accused man at Wadsa in the Gadchiroli district of Maharashtra. It was decided that the two would be married on April 13. 

The accused had made the necessary arrangements for the wedding. However, due to the second wave of the Covid-19 pandemic and the lockdown declared by the government, the wedding was postponed. The marriage was again fixed on May 3 but this time the woman tested positive for Covid and, therefore, their marriage was deferred yet again.

A few weeks later, the accused arranged a trip where friends and families of the bride and groom stayed at a resort. Here, according to the woman, the accused established a physical relationship with her against her consent on the pretext that she would be his wife soon.

However, after the incident, the man started to avoid her and sought time to solemnise the marriage. On June 22, the man and his family came to her house and refused to conduct the marriage. Moreover, they accused the complainant of being addicted to alcohol and said that her mental condition is such that she could not be shown pity.

The order said that"It can be gathered on the basis of the material that the applicant had hidden intention not to marry the applicant once his sexual lust is satisfied".

The court finally mentioned that this did not seem like a simple case of cheating, but it was cheating coupled with the serious offence of rape.