oppn parties Mala Fide To Be Proved For Rape Charge To Hold If Man Refuses To Marry After Consensual Sex

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International Court of Justice agrees with India, stays Kulbhushan Jadhav's execution. It asks Pakistan to allow consular access to the accused.
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Mala Fide To Be Proved For Rape Charge To Hold If Man Refuses To Marry After Consensual Sex

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Writes for a number of publications.
In a judgment that is going to have wide ramifications in society, the Supreme Court has clearly said that if the promise to marry was not made with the sole intention of seducing a woman to have sex, a person cannot be held for rape if the marriage does not happen due to other factors. The court took pains to once again explain the stated position of law (as laid down in several earlier orders of the apex court) as far as the distinction between rape and consensual sex is concerned. The court said 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 later 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."

In the instant case, the prosecutrix was a widow who got into a relationship with the appellant Dr. Dhruvaram Murlidhar Sonar. The court noted that they were living together alternately at each others’ place. It also noted that the woman had said that she had fallen in love with him as she needed a companion on account of her widowhood. The court said that "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." It also said that "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."

The court has thus clearly stated that the mere fact that a person fails to marry a woman after having sex with her is not enough to charge him with rape under u/s 376 of the IPC. It has to be proved that the man acted with mala fide intentions and that his sole intention was to have sex with the woman and he never intended to marry her. If the sex was consensual even under a promise of marriage, the man would still not be held for rape if he later failed to marry her “on account of circumstances which he could not have foreseen or which were beyond his control”. The court has thus recognized that a relationship can break at any stage and either of the parties can refuse to carry out earlier promises. But if the relationship was consensual, it could at best be a breach of promise and not a criminal offence.