If The Promise To Marry Was Not Made With Sole Intention To Seduce A Woman To Indulge In Sex, It Is Not Rape: SC

It has be acknowledged right at the outset that in a significant judgment titled Dr Dhruvaram Murlidhar Sonar v The State Of Maharashtra & Ors in Criminal Appeal No. 1443 of 2018 (arising out of S.L.P. (Criminal) No. 6532 of 2018) with far reaching consequences, the Supreme Court Bench on November 2018 made it amply clear that if a person had not made the promise to marry with the sole intention to seduce a woman to indulge in sexual acts, such an act would not amount to rape. This landmark and laudable judgment was authored by the Supreme Court Judge – Justice S Abdul Nazeer for himself and Justice AK Sikri. The Apex Court Bench was considering an appeal filed by Dr. Dhruvaram Murlidhar Sonar against the High Court against the order of Aurangabad Bench of Bombay High Court refusing to quash 'rape case' filed against him.

To start with, para 2 first and foremost begins by pointing out that, 'This appeal is directed against the judgment and order dated 02.07.2018 in Criminal Application No. 3590 of 2012, whereby the High Court of Judicature at Bombay (Bench at Aurangabad) dismissed the application filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for quashing the First Information Report No. 59 of 2000 registered with Mhasawad Police Station, District Nandurbar, for the offences punishable under Section 376(2)(b), 420 read with Section 34 of the Indian Penal Code, 1860 (for short 'the SC/ST Act') and the chargesheet filed in the court of judicial magistrate, F.C. Shahada, Nandurbar District.'

To recapitulate, para 3 then goes on to illustrate mentioning that, 'The appellant is the accused No. 1 in the aforesaid FIR registered at the instance of the complainant/respondent No. 4. At the relevant point of time, the appellant was serving as a medical officer, Primary Health Centre at Toranmal, Dhadgaon Taluq, Nandurbar district, whereas the complainant was working as an Assistant Nurse at the same establishment. The allegations made by the complainant in the FIR in brief are that her husband died on 05.11.1997, leaving behind her and her two children. During this time, the appellant informed her that there have been differences between him and his wife, and therefore, he is planning to divorce his wife. Further, the appellant informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage. Therefore, she started living with the appellant at his Government quarters. The FIR further states that she 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. They resided some time at her house and some time at the house of the appellant. The appellant acted as if he has married her and has maintained a physical relationship with her. However, he has failed to marry her as promised. When things stood thus, his brother, i.e. accused No. 2 claims to have married her. Thereafter, in the year 2000, complainant received the information from the co-accused about the marriage of the appellant with some other women. Therefore, she filed the aforesaid complaint and FIR dated 06.12.2000 came to be registered against the appellant and the co-accused.'

Of course, para 4 then goes on to reveal that, 'After the completion of the investigation, the investigating agency filed a final report on 14.06.2001. The appellant filed the criminal application under Section 482 before the High Court for quashing the FIR and the chargesheet. As noticed above, the High Court has dismissed the criminal petition by its order dated 02.07.2018.'

Having said this, it must be now informed that para 5 while presenting the appellant's version reveals that, 'Learned counsel for the appellant contends that in the instant case the process of the court is sought to be abused by the complainant with oblique motive. The criminal proceeding is manifestly intended with mala fides and the proceeding is maliciously instituted with an ulterior motive. It is submitted that the complainant was involved in relationship with the brother of the appellant and the appellant was not in relationship with her at any point of time. As a matter of fact, marriage was solemnized between the brother of the appellant and complainant. The complainant was constantly blackmailing the appellant for some reason or the other. It is submitted that even if the entire allegations made in the complaint are taken at their face value and accepted in its entirety, such allegations do not constitute any offence.' Para 6 then reveals that, 'On the other hand, learned advocate appearing for respondent Nos. 1 to 3 has sought to justify the impugned order.'

To be sure, the Apex Court Bench then observes in para 7 that, 'We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record.' Para 8 then makes it abundantly clear that, 'It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions 'abuse of process of law' or 'to secure the ends of justice' do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.'

To reiterate what has been just stated above, it is then very rightly pointed out in para 11 that, 'In State of Karnataka v. M. Devendrappa and Anr., (2002) 3 SCC 89, it was held that while exercising powers under Section 482 Cr.P.C., the court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It was further held as under: -

'It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto'.'

While continuing in the same vein, it is then again observed unequivocally by the Apex Court Bench in para 12 that, 'Recently, in Vineet Kumar and Ors. V. State of Uttar Pradesh and Anr. (2017) 13 SCC 369, this Court has observed as under:

'Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.'

It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.'

To put things in perspective, in para 18 it is then elaborated in detail the case law titled Deepak Gulati v State of Haryana (2013) 7 SCC 675 in which the Court has drawn a distinction between rape and consensual sex. The gist of the ruling in this case is this: 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 travelled with him from one place to another.

Going forward, it is then observed in para 19 that, 'Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No. 504 of 2018, disposed of on 6th April, 2018 has 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 levelled 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'.'

In essence, it is then rightly elucidated in para 20 that, '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 latter falls within the ambit of cheating or deception. There is also a distinction between 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.'

Delving deeper on the case at hand, it is then observed in para 21 that, 'In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is a widow. It was alleged by her that the appellant 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/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant 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 a 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 complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.'

Going ahead, it is then held in para 22 that, 'Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C.'

Finally and most importantly, it is then rightly held in the concluding para 23 that, 'In the result, the appeal succeeds and is accordingly allowed. The impugned order of the High Court dated 02.07.2018 in Criminal Application No. 3590 of 2012, is hereby set aside. The First Information Report dated 6.12.2000 field by the complainant in the Police Station at Mhasawad, District Nandurbar, on the basis of which Crime No. 59 of 2000 is registered against the appellant, is hereby quashed. The chargesheet dated 14.06.2001 filed by Mhasawad Police Station against the appellant for the offences under Sections 376(2)(b), 420 read with Section 34 of the IPC and Section 3(1)(x) of the SC/ST Act is also quashed.'