SEXUAL RELATION WITH PROMISE TO MARRY: IS IT RAPE?

SEXUAL RELATION WITH PROMISE TO MARRY: IS IT RAPE?

(SUCCESS STORY-1)

BACKGROUND:

On 15/09/2020 at 3.16 a.m. I received a message:

“Sir, I want to meet you urgently if you are available. I am in a big trouble. I want your valuable help in this matter. I wish to meet you tomorrow morning if you are available.”

I quickly responded: “Sure.”

“Can I call you now Sir, for a brief period? I will just tell the outlines as I am too tensed.” –requested from other end.

I understand the mental condition of a person who is seeking permission to call a lawyer for describing his problem.

“OK”- I allowed.

I received the call, listened patiently whatever is told at the other end and finally I suggested him to visit my chamber early in the morning (and of course, what can I suggest other than this!).

FACT OF THE CASE: ALLEGATION AGAINST MY CLIENT:

That on 14/09/2020 the informant lodged an FIR before the XXXXX Police Station alleging inter alia that since 2017 there was a love affair between the informant and the accused client. The accused entered into physical relationship with the informant several times with a promise to marry her. It was also alleged that in the month of February, 2020 she was induced to get abortion while she was pregnant. Now the accused is threatening that he will not marry her and asked her to go away. Accordingly, a case was registered vide XXXX P.S. Case No. xxx/2020 u/s 312/376/420/506 IPC.

CLINICAL ANALYSIS OF THE CASE:

Age of the accused: 26 years

Age of the informant: 35 years

Relation since: 2017

Abortion done: February, 2020

FIR lodged on: 14/09/2020

Case registered: u/s 312/376/420/506 IPC which means-

Section 312 IPC: Causing miscarriage: Non-cognizable bailable offence, punishment is imprisonment for 3 years or fine or both, triable by magistrate of the first class.

Section 376 IPC: Rape: Cognizable non-bailable offence, punishment is rigorous imprisonment of not less than 7 years but which may extend to imprisonment for life and with fine, triable by the Court of Session.

Section 420 IPC: Cheating and thereby dishonestly inducing delivery of property or the making, alteration or destruction of a valuable security: Cognizable non-bailable offence, punishment is imprisonment for 7 years and fine, triable by magistrate of the first class.

Section 506 IPC: Criminal Intimidation: Non-cognizable bailable offence, punishment is imprisonment for 2 years or fine or both, triable by any magistrate.

REMEDY OF THE CASE:

The initial remedy of the case is to move an anticipatory bail u/s 438 Cr.P.C. Accordingly an anticipatory bail application was filed vide A.B. No. XXXX/2020 praying for interim bail as well as absolute bail to the accused applicant/ my client.

GROUNDS TAKEN:

We have taken basically 2 grounds for anticipatory bail to the accused. Ground No.1: The informant is about 10 years elder than the accused. Therefore she is more matured than the accused. As their relationship was since 2007 (for the last 3 years), it may be assumed that the informant rendered a free consent to physical relationship, if any, with the accused. Further she was absolutely aware about the outcome and consequences of the relationship with a comparatively immatured accused. Ground No.2: As per reported judgments passed by the Hon’ble Gauhati High Court as well as the Supreme Court of India, physical relationship with a promise to marry a woman cannot be treated to be the offence of rape if the accused subsequently fails to fulfill his promise (citation of the case may be provided via email if request is made through the “contact us” page of this website).

RESULT:

After hearing our submissions and considering the facts and circumstances of the case the Hon’ble Gauhati High Court was pleased to grant interim bail to the accused vide order dated 24/09/2020. Finally after perusal of the Case Diary and hearing the parties the said Hon’ble High Court was further pleased to dispose of the matter vide order dated 12/11/2020 whereby the interim order dated 24/09/2020 was made absolute.

DECIDED LAW

Sexual relation with promise to marry does not amount to rape, rather it may be considered to be cheating punishable u/s 417 if there is no delivery of property and punishable u/s 420 if there is dishonestly inducing delivery of property or the making, alteration or destruction of a valuable security.