Bombay High Court: Consent for sex invalid if boy doesn’t tell girl that his parents won't accept her

  • Narsi Benwal
  • 02:45 PM, 15 Feb 2021

If a girl consents to have sexual intercourse after the man marries her but conceals the fact that his family won't accept her, then the consent won't be valid, held the Aurangabad bench of the High Court. The HC pronounced the ruling while dismissing a plea filed by a man, who sought quashing of the FIR filed against him under charges of rape.

A bench of Justices Tanaji Nalawade and Mukund Sewlikar was dealing with a plea filed by a 30-year-old Patna resident seeking to quash the FIR registered against him on a complaint filed by a Latur-based woman.

The woman claimed to have become friends with the accused while they were working together in a company at Kolkata. The accused later on took her to a trip to Shimla and there he made sexual advances, however, the victim refused to indulge in any sexual activity since they weren't married.

As per the FIR, the accused applied kumkum on the victim's head and even made her wear his own ring. Then, he claimed that since they were now married, they can have sex.

Accordingly, the victim consented to sexual intercourse and she was subjected to the same throughout the time they both stayed in Shimla.

After their return from Shimla, the accused avoided marrying the victim on the ground that he wants his elder sister to first marry. But later on, revealed that he won't marry her since his family won't accept her as she belongs to a lower caste.

Having considered the facts, the bench said, "At the relevant time, he did not make her aware of the obstacles that could be created by his parents. He projected before her that he was ready to marry her and actually got married to her in the temple. Thereafter, she submitted herself to the desire of accused."

"If he had made known to her that his parents would not consent for their marriage, she would not have submitted herself to his desire to have physical relations. This clearly indicates that he concealed this

fact from her and obtained her consent projecting as if his parents would not go against his wish," the judges noted further.

The judges further noted that the accused did not tell the victim that her belonging to a lower caste would be a huge obstacle in their marriage as his parents won't accept her.

"These factual aspects clearly demonstrate that the consent was obtained by a misconception of fact. He had no intention to marry her right from the inception," the judges held.

"The position would have been different if he had made it clear to her that his parents might not give consent for their marriage and still she would have had submitted to his desire for sexual intercourse," the bench opined.

The bench further said that there are no circumstances, brought on record, to show that because of some "unforeseen circumstances" he could not marry her.

"It is thus is evident that the alleged consent for sexual intercourse was obtained out of a misconception of fact and therefore it cannot be said that no cognizable offence is made outagainst the accused," the judges held while denying to quash the FIR.