Breach of longstanding consensual relationship having approval of family would not be rape: Allahabad High Court

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Court held that in the case hand, the victim and her family were well aware of the consequence of her relation with the accused, therefore, any breach of promise of marriage could not be held as rape

The Allahabad High Court recently quashed the entire proceedings in a rape case against a man accused of raping a woman on false promise of marriage. 

The bench of Justice Anish Kumar Gupta noted that the accused and the victim were known to each other for more than 15 years and they had been in active physical relationship with the approval of the parents of the victim for more than 8 years

The bench underscored that when there is a longstanding relationship between the parties under the promise of marriage, it is to be seen as to whether such promise of marriage was false at the inception or it was a subsequent breakdown of the relationship.

The bench pointed out that in the instant case, since the relationship between the parties was of consensual nature having an approval of the family, and the initial promise by the accused was not false, therefore, any subsequent breach of such relationship would not amount to the offence of rape under Section 375 of the Indian Penal Code (IPC). 

The court passed the order in an application filed under Section 482 of the Criminal Procedure Code (CrPC) seeking quashing of the charge sheet and cognizance/summoning order passed in 2020 along with entire proceedings against the applicant in a case registered under Sections 419, 420, 376, 504, 506 of the IPC.

The brief facts, as per the FIR in the case, were that the victim and the accused met in a relative's marriage. Thereafter, a relationship began between the two. The family of the victim was supportive of the relationship. Even the family of the victim had sent the accused to Saudi Arabia by arranging the funds. However, when the accused returned and the victim's family asked him to marry the victim, he refused. Therefore, the victim alleged that the accused made physical relations with her between 2008 to 2018, under the promise of marriage against her will.

The allegations were opposed by the accused who claimed that the instant case was nothing but a misuse of the process of law as no offence as alleged against the accused could be said to have been made out.

The counsel for the accused relied upon the judgment of the Apex Court in the case of Shivashankar @ Shiva vs. State of Karnataka (2018) wherein the Hon'ble Apex Court held that "it is, however, difficult to hold sexual intercourse, 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."

The high court said that it is a settled position of law that if there are materials to indicate that the criminal proceedings is initiated with mala fide intentions and with an ulterior motive, it is the duty of the High Court to quash such proceedings in exercise of powers under Section 482 CrPC.

Court said that in Section 375, IPC, which is punished under Section 376, IPC, the offence of rape is constituted when sexual intercourse is committed against the will of woman and without her consent.

"A women is said to consent only when she freely agrees to submit herself while in free and unconstrained possession of physical and moral power to act in a manner she wanted. Consent implies the exercise of free and untrammelled right to forbid or withhold what is being consented to," added the single judge bench. 

While referring to the ruling of the Apex Court in State of HP vs. Mango Ram(2000), where a three judge bench had held that consent for the purpose of Section 375, IPC requires voluntary participation not only after the exercise of intelligence based on the knowledge of significance and moral quality of the act but after having fully exercised the choice between resistance and assent whether there was consent or not is to be ascertained only careful perusal of relevant circumstances, the high court held that in the present case, the vicitm and her family were well aware of the consequence of the relationship, therefore, no offence of rape was made out against the accused. 

Case Title: Jiyaullah v. State of UP and Another