Date of judgement:
10th December 2021
Bench:
Justice Parthivjyoti Saikia
Parties:
Appellant – Sri Raktim Saiki, Sri Bitu Saiki @ Ashim
Respondent – The state of Assam, Sri Dimbeswar Gogoi
Subject
It is held by the Gauhati HighCourt that under Section 90 of IPC, a simple promise to marry without anything more will not give rise to “misconception of fact”. The judgments which were passed in this case by the Appellate as well as Trial Court earlier were stated as not appropriate in law.
Legal Provisions
- Section 90 IPC- consent given under misconception or fear.
- Section 419 IPC- Punishment for cheating with intention.
- Section 366 IPC- abducting, kidnapping, or forcing women to compel her marriage.
- Section 376 IPC- Punishment for rape
Overview
- A girl who was 20 years old, ran from her house with the petitioner who was said to be her lover. The father of the girl filed an FIR saying his daughter was kidnapped by the petitioner on a promise of marriage.
- As a result of investigation, a charge sheet under section 419 and 366 of IPC was filed against petitioner and his uncle “Mr.Bitu Saikia”. In addition to that a charge sheet under section 376 of IPC was filed against the petitioner.
- The girl in the Trial Court agreed of having affair with the petitioner and one day she was proposed by him for marriage. On 18th January 2016 she received a call from him after which she lied to her parents and went away with him.
- They went to the petitioner’s uncle’s house where the uncle was arranging the marriage. There she refused to get married and as a result was beaten by the petitioner. Moreover the uncle forcibly put vermilion on her head.
- She stayed there for 4 days and in those days the petitioner had sexual intercourse with her without the will of her. The girl then called at her home from the phone of Bitu Saikia’s elder sister.
- This application arose u/s 397 read with section 401 of Cr.P.C where judgment passed on 18th December 2017 by Session Judge which arose from the judgment passed by Assistant Sessions Judge on 9th December 2016. These judgments were challenged by the petitioner.
Issue
- Whether a false promise of marriage was made by the accused at an early stage?
- Whether the consent was given after understanding the consequences and nature of sexual appeasement?
Judgment Analysis
- Here the victim said that on basis of proposal of marriage she went with the petitioner. The victim was matured enough at that time, so the court had valid reason to hold the victim as consenting party.Thus, the law is very clear that a simple promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, IPC”.
- Evidence which was presented by the victim failed to prove that she was kidnapped and then raped. Hence,the judgments passed by Trial as well as Appellate court were not sustainable in law.”
- In case of Deepak Gulati v. State of Haryana (2013), the Apex court held that, there is clear difference between consensual sex and rape. And in such cases the court should be very careful while examining that whether the accused really wanted to marry the victim or had wrong intentions for just fulfilling his lust, as the later one is called cheating.
- The petition here was allowed, and hence the order passed by Sessions Judge and Assistant Sessions Judge were quashed. The Court directed that the petitioner be set free forthwith. Also, the Court directed to pay Rs.7000/- to Ms. M.B. Baruah, Legal Aid Counsel as professional fee, appreciating the assistance.
Conclusion
Consent is one of the fundamental issues in the offence of rape. Its absence or presence makes the act unlawful or lawful. The girl in the instant case admitted that she went with accused on her own will, hence the charge of kidnapping was not valid.
In cases, where there is breach of promise, the man should not be convicted for rape but if the man made false promises since the beginning, then the man can be accused of rape. Hence when a man genuinely talks about marriage to a woman he cannot be charged for rape.In case of Sandeep Kaniram Rathod vs State of Maharashtra, the court held that sexual relationship after promising marriage and reneging on it does not amount to rape”.
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