Home case law Anurag Soni vs. The State of Chhattisgarh (2019)

Anurag Soni vs. The State of Chhattisgarh (2019)

September 26, 2024

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This article is written by Ayushi Dubey, and further edited by Priyanka Jain. The article is a case analysis of the Supreme Court judgement, Anurag Soni vs. State of Chhattisgarh (2019). The author has discussed the facts of the case, the arguments of the parties, major issues, the law referred, and the judgement of the Anurag Soni vs. State of Chhattisgarh (2019). The article provides an in-depth analysis of the judgement and also discusses the related case laws.

Table of Contents

Introduction

Section 375 of the Indian Penal Code, 1860 (now Section 63 of Bhartiya Nyaya Sanhita, 2023) defines rape. In simple words, rape is forcibly establishing sexual intercourse or any kind of sexual relationship with a female against her will. After the 2013 amendment to Section 375, the definition of rape has been expanded to a greater extent. The new definition now covers wider aspects and forms a clear understanding. It lays a number of conditions where sexual intercourse can be termed as rape. But still, with growing and changing times the judiciary faces new situations every day. There are cases which are not based on the same line of fact as the code laid. In this situation, the court has to interpret the situation and deliver justice in the best way possible.

Anurag Soni vs. The State of Chhattisgarh (2019), is a criminal appeal in the Supreme Court. The judgement was delivered by a two-judge bench, consisting of Hon’ble Justice L. Nageshwar Rao and Hon’ble Justice M.R. Shah. In the present case, a new kind of situation has come up. A girl and a boy can be in a love affair but that doesn’t necessarily mean that the girl has consented for sexual intercourse. Similar is the concept of marital rape which is still not criminalised in India. The judiciary has still not interpreted the situation that exists in a marriage.

The court, in this case, has given a new dimension to the word “consent”. The Supreme Court in this case, outrightly held that making a false promise of marriage to have a sexual relationship would amount to rape. So, if a girl has consented to have sexual intercourse on the pretext of marriage, which turns out to be fraud, then the consent obtained would not be considered as a valid consent considering Section 90 of IPC (now Section 28 of Bhartiya Nyaya Sanhita).

Let us understand the case.

Facts of the case

At the time of the incident, the prosecutrix was a resident of Koni, district Bilaspur and was doing her pharmacy studies from Bhilai. The appellant was a junior doctor working at a government hospital in Malkharoda. The prosecutrix and the appellant had known each other since 2009 and were in a love affair.

According to the prosecutor’s side of the story, the appellant showed his desire to meet the prosecutrix and therefore the prosecutrix on 29.04.13 arrived at the appellant’s home. She stayed there from 2 pm, 29.04.13 to 3 pm, 30.04.13. During her stay at the appellant’s house, the appellant showed his desire to have sexual intercourse but the prosecutrix was reluctant and was refusing repeatedly. The prosecutrix finally gave her consent to have sexual intercourse with the appellant on the pretext of marriage between the two.

The appellant had ensured the prosecutrix that he will talk to his family about their marriage on 1st or 2nd May 2013. The appellant also asked her not to tell anybody about the incident. The prosecutrix then repeatedly asked the appellant between 2.05.13 to 05.05.13 about their marriage but received no valid response. Therefore she finally disclosed all that happened to her parents and her parents went to the appellant’s parents. Both the families after discussing the issue decided that the couple should get married since no other option is left.

But later on the appellant refused to marry the prosecutrix and it revealed that the appellant was keeping the prosecutrix and her family members in the dark and had married another girl two months back.

Subsequent to this the prosecutrix filed a case of rape on the pretext of marriage under Section 376 of IPC (now Section 63 of Bhartiya Nyaya Sanhita, 2023) in the Malkharoda Sessions Court. The learned Sessions Court held that the consent of the prosecutrix was taken by misrepresentation and hence convicted the appellant under Section 376 and punished him with 10 years of rigorous imprisonment.

The accused (appellant in the present case) dissatisfied by the judgement of the learned Sessions Court then appealed at the High Court. The High Court dismissed the appeal and upheld the decision of the Sessions Court.

Aggrieved by the judgement of the High Court the accused appealed in the Supreme Court against his conviction under Section 376 and claimed that he has been convicted on false charges.

Arguments by the parties

Appellant

The appellant, in the Supreme Court, argued that the allegations made by the prosecution against him are false. The counsel appearing for the appellant submitted that both the Sessions and the High Court have erred in making the decision for this case. Both the courts have missed Section 90 of the IPC and Section 114-A of the Indian Evidence Act,1872, now Section 120 of Bhartiya Sakshya Adhiniyam, 2023 while categorising the incident as rape under Section 375 Indian Penal Code.

It was further submitted by the counsel appearing for the accused that the prosecutrix was in love with the accused and wanted to marry him. Whereas the accused had mentioned in his Section 313 Code of Criminal Procedure (Cr.PC) (now Section 351 of Bhartiya Nagrik Suraksha Sanhita 2023) statement that the prosecutrix and her family members were already aware of the fact that the accused’s marriage is fixed with one, Priyanka Soni. Still, the prosecutrix and her family members pressurised the accused to marry the prosecutrix.

Further, the counsel for the appellant submitted that even if we consider that the accused had promised to the prosecutrix and still didn’t marry her, then also he had only committed the wrong of “Breach of Promise” and hence should not be punished under Section 376 of the Indian Penal Code.

The counsel appearing for the appellant finally submitted that both the prosecutrix and the appellant are married now and have moved on with their lives and, therefore, the case should end and the conviction of the accused should be set aside.

Respondent

The state of Chattisgarh is the respondent in the present case, there were two counsels representing the respondent. One representing the state and the other representing the prosecutrix (hereinafter together referred to as “counsel for the respondent”).

The counsel for the respondent vehemently submitted that the present case is not a mere breach of promise as contended by the counsel appearing for the appellant. It was submitted that the accused never had the intention of marrying the prosecutrix and still he called her at his house. Also, even after the repeated refusal by the prosecutrix the couple indulged into sexual intercourse where the prosecutrix’s consent was based upon the promise of marriage, made by the accused. Since the prosecutrix gave her consent upon that promise, the consent is said to be taken by a misconception of fact. The consent, in this case, cannot be said as consent even considering Section 90 of the IPC.

Further, counsel on behalf of the respondent tried to establish the intention of the accused. When the families of the prosecutrix and the accused were meeting for the fixing of the marriage, the accused was never present there. In fact, he ran away and married another lady. He didn’t even inform the prosecutrix or her family before his marriage. This shows that he never wanted to marry the prosecutrix and made a false promise to obtain his consent. Therefore, it is rightly convicted under Section 376 of the IPC

Issues raised in the case

After listening to the arguments from both sides and going through the judgements of the lower courts, the question before the Supreme Court was whether in the facts and circumstances of the case, and considering the evidence on record, the courts below have committed any error in holding the accused guilty for the offence under Section 376 of the IPC?

Laws involved in Anurag Soni vs. The State of Chhattisgarh (2019)

Section 375 of Indian Penal Code, 1860

Under Section 375 of the Indian Penal Code, 1860, it is provides that a man is said to have committed “rape” if he:

penetrates his penis into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
inserts any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

against her will, when she doesn’t give her consent for such penetration or manipulation;
without her consent, when she doesn’t give her consent through words;
with her consent, when she has given consent under the fear of her death or the death of anyone who she is interested, they can be parents, siblings, children or even a pet;
with her consent, when she believes that the man who is taking her consent is going to be her husband or she has married to him;
with her consent, when she was intoxicated using some stupefying and unwholesome substance that was given to her personally by the man or someone else after being asked by the man. She was unable to understand the consequence of her consent;
with or without consent, if she was under eighteen years;
when she is not able to give consent.

A communication can be verbal or through gestures. If a woman was silent it cannot be taken as her consent for the said sexual intercourse.

According to Section 375, consent is an “unequivocal voluntary agreement” in which the woman can communicate by way of verbal or non-verbal communication, through words or gestures, her willingness to participate in that sexual act.

Section 63 of the Bharatiya Nyaya Sanhita, 2023

This Section of Bharatiya Nyay Sanhita defines the offence of rape, which is essentially the same as provided under Section 375 of IPC. Further, consent under Section 63 of Bhartiya Nyaya Sanhita, 2023 has been kept the same only the age of consent by the wife for sexual intercourse has changed to eighteen years from sixteen years.

Section 90 of Indian Penal Code, 1860

Section 90 of the Indian Penal Code, 1860 talks about consent that is given under fear or misconception of fact. The consent is invalidated under the following circumstances:

if the consent is given by a person under the “fear of injury”, or under a “misconception of fact”, and if the person (accused) doing the act knows, or has reason to believe, that the consent of the victim was given in consequence of putting him in the fear or misconception; or
if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
if the consent is given by a person who is under twelve years of age.

In a nutshell, consent is invalid if it is given under fear of injury, misconception of fact, unsoundness of mind/ insanity, intoxication, by a person under twelve years of age.

Section 28 of Bhartiya Nyaya Sanhita, 2023

Section 90 of the IPC has given its place in Bhartiya Nyaya Sanhita at Section 28. This Section also invalidates the consent under the conditions as were previously prescribed under Section 90 of IPC.

Section 114A of the Indian Evidence Act, 1872

Section 114A of the Indian Evidence Act, 1872 empowers the Courts to presume that there were no consent of the rape victim, if during investigation the woman says she did not consent for the act, in certain situations prescribed under Section 376 of the Indian Penal Code, 1860. Following are the situations:

(i) When the police officer has committed rape of a woman within the limits of his police-station; or

(ii) When the police officer has committed rape of a woman in the premises of any station house; or

(iii) when she was in his custody or in the custody of any subordinate officer; or

When a public servant commits the rape of a woman in his custody or in the custody of subordinate officer;or
When a member of teh armed forces commits rape where he is deployed either by the Central Government or the State Government; or
When anyone in the management of jail or remand home or any other place of safety or place of custody commits the rape of inmates of that place be it woman or children; or
When Staff or anyone in management of a hospital commits rape on a woman in that hospital;or
When any person commits rape during communal or sectarian violence; or
When any relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape of such woman; or
When any person commits rape on a woman knowing her to be pregnant; or
When any person commits rape on a woman under sixteen years of age; or
When the rape of woman committed who was incapable to give her consent; or
When someone is in the position to control and dominate the woman, commits her rape; or
When someone commits rape on a woman suffering from mental or physical disability; or
When while committing rape assailant disfigures, maims, or causes grievous bodily hurt, or endangers the life of woman; or
When someone is a repeat rape offender on the same woman;

Where sexual intercourse by the accused is established and the question is whether it was committed without the consent of the victim and such victim testifies in her evidence before the court that she did not consent, the court shall presume that there was lack of consent.

Section 120 of Bhartiya Sakshya Adhiniyam, 2023

Section 120 of Bhartiya Sakshya Adhiniyam, 2023 is the corresponding Section of Section 114A of the Indian Evidence Act, 1872. This section empowers the courts to presume that there were no consent of the rape victim, if during investigation the woman says she did not consent for the act, in certain situations prescribed under Section 64 of Bhartiya Nyaya Sanhita, 2023. The situations specified are the same as are provided in the preceding part.

Judgement of the case

The accused was held guilty of the offence of rape under Section 376 of the Indian Penal Code, 1860. However, his punishment was reduced to seven years from ten years on the request of his learned counsel. Consent of the prosecutrix was taken on the misconception of the fact that the accused shall marry her.

The intention of the accused was not bonafide from the beginning. She became the victim of his lust. He promised and persuaded the prosecutrix to believe that he shall marry her. He obtained her consent on total misconception. If he didn’t say that he will marry her, she wouldn’t have given her consent for consensual sex. This consent is not consent. Hence, it is a clear case of cheating and deception.

Rationale behind the judgement

A number of cases were referred by the Supreme Court in order to deliver this judgement. Reliance was placed on precedents to understand the scope and ambit of Section 375 and Section 90 of the IPC.

Essentials and parameters of rape

In Kaini Rajan vs. State of Kerala (2013), the Hon’ble Apex Court explained the essentials and parameters of rape. First clause is where the woman is in possession of her senses, and, thus, capable of giving her consent, but the act was done against her will. Here the expression, “against her will” requires elaboration. The act was done despite continuous opposition from the woman. Consent for the purpose of the Section 375 requires active participation which can be inferred by evidence or probabilities of the case.

The court referred to this case for explaining the important parameters of rape. The case places a lot of emphasis on consent while considering rape cases. It was held that whether the consent was given willingly or not would depend upon the facts and circumstances of the case in hand. It was further held that Section 90, though does not define what consent is, defines what is not consent. Emphasis was placed on the choice between resistance and assent.

“Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.

“Consent” holds a special place in legal parlance. Every informed decision is based on one’s consent. Consent means allowing something to happen. It also means not negating something. It is the expression of agreement. It must be free, without coercion, pressure, emotional bias, and duress. The present case set a stage for the importance of consent in the heinous crime of rape. Without consent, the victim turns into an accomplice. Present judgement emphasises that consent obtained for intimacy through precarious or fraudulent means like a false promise of marrying later is no consent, and it constitutes rape. This case not only reaffirms the importance of genuine consent but also restores the confidence of the public in judiciary in the sensitive matters like rape.

Distinction between rape and consensual sex

In Deepak Gulati vs. State of Haryana (2013), Hon’ble Supreme Court created a distinction between the rape and consensual sex. It was observed that consent can be expressed, implied, misguided, coerced, and obtained through willingness or deceit. It is the decision of the mind, weighing on the balance all the good and evil consequences. To ascertain if the impugned conduct was a rape or consensual intercourse, the court has to examine whether the accused wanted to marry the woman or merely satisfy lust. If it is shown or proved that it was only to satisfy lust then it falls under the purview of deception and cheating. An accused can be convicted of rape only if it is proved that the accused has malafide intention.

The case places heavy reliance on the intention of the accused. There may be a situation when a girl consented for sexual intercourse on account of her love for the accused and not only because they would get married. Also, it may be possible that the accused could not marry the girl due to unforeseen conditions or conditions which are out of his control. In such cases, the consent would not be hit by Section 90 of the IPC. Therefore, it is very relevant to note the intention of the accused while dealing with such cases. The court, in this case, held that:

“Section 90 IPC cannot be called in to aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”

Invalidity of consent because of false promise of marriage

In Yedla Srinivasa Rao vs. State of Andhra Pradesh (2006) the main issue before the Hon’ble Supreme Court was to decide, had this promise not been given perhaps, the prosecutrix would not have permitted the accused to have sexual intercourse.

Section 90 of the Indian Penal Code, 1860 tells that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be taken to be a valid consent. In this case, right from the beginning, the intention of the accused was not honest and he kept on promising that he will marry the prosecutrix, till she became pregnant. In the instant case, the story is based upon similar lines as the case of Anurag Soni. The accused forcibly had sexual intercourse with the woman and continued doing that on the promise of marrying her and abandoned when she got pregnant. The court in this case outrightly held that the accused never had the intention of marrying the girl, he played fraud with her to satisfy his lust. The court held that the consent, in this case, is invalid. Further Section 114-A of the Indian Evidence Act was referred stating that the court shall presume that the girl never consented for sexual intercourse if she says so. This Section was added due to an increasing number of rape cases so that women don’t feel unsafe and they don’t hesitate in approaching the court. The court also said “Presumption has been introduced by the legislature in the Evidence Act looking at atrocities committed against women.”

Consent secured under misconception of fact

Further, in the case of the State of Uttar Pradesh vs. Naushad (2013) the Supreme Court found that the consent obtained by the accused was not voluntary, which was given by the prosecutix under the misconception of fact that the accused would marry her; this consent is “no consent” in the eyes of the law. So, the court held the accused guilty of rape under Section 376 of The Indian Penal Code, 1860 as he has secured the consent of the woman fraudulently, under a misconception of fact.

The Supreme Court convicted the accused of rape on similar reasoning. It was held that the consent would not be considered to be given since it was made upon a false promise of marriage which the accused never intended to fulfil.

Dividing line between rape and consensual sex

In Dr. Dhruvaram Murlidhar Sonar vs. the State of Maharashtra (2018) Supreme Court has observed that there is a clear dividing line between rape and consensual sex. The courts, in such cases, must very carefully scrutinise whether the accused actually wanted to marry the victim or had mala fide intentions, and had made a false promise to this effect only to satisfy his lust, as the false promise falls within the ambit of cheating or deception.

Also, there is also a clear distinction between mere breach of a promise and fulfilling a false promise. If the accused has made the promise not 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, because of circumstantial despair 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 from rape cases.

The prosecution led cogent evidence that from the very inspection the accused had no intention to marry the victim and also he had bad intentions so he made a false promise only to satisfy his lust. The prosecutrix would not have given the consent to have the physical relationship if he had not made the false promise to marry her in future. It was a clear case of cheating and deception by the accused. The consent given by the victim was the misconception of fact.

Further, the Hon’ble Court observed that these cases are rising exponentially. Such offences are against society. Rape is the most morally and physically degrading crime in a society, an assault on the body, mind and privacy of the victim. As observed by this court from time to time, while a murderer destroys the physical frame of the victim, a sex offender degrades and defiles the soul of a victim. Rape reduces a woman to state of despair like an animal, as it deeply affects her life.

A rape victim cannot be be called an accomplice. Consensual sex does not make anyone an accomplice. Rape leaves a lifelong stigma on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Rape is the most hated crime, the rape equivalent to a serious blow to the supreme honour of a woman, and offends both her respect and dignity. Therefore, both the accused and the victim have married subsequently, is not a ground not to convict the appellant accused for the offence punishable under Section 376 of the Indian Penal Code 1860.

The appellant accused must face the consequences of the crime committed by him. So, the court maintained the punishment given by the lower courts but reduced it to seven years as it is the minimum punishment of the rape on the ground of request by the counsel as the accused has already undergone the imprisonment while the case was undertrial.

Finally, a Delhi High Court case, Sujit Ranjan vs. State (2011) was referred to. The case held that whether the consent by the prosecutrix was given voluntarily or by “misconception of facts” would depend upon the facts and circumstances of the case because there could be various reasons for which the accused failed to keep the promise, other than the misconception of fact. The case laid down that the court must take due care while arriving at the conclusion in such cases. Also, the burden of proof, in this case, would lie upon the prosecution to prove the offence. The prosecution would have to prove the case beyond reasonable doubt and that the accused never had the intention of marrying the prosecutrix.

The Supreme Court after listening to both sides of the story and examining the witnesses came to the conclusion that the prosecutrix and the appellant were in a love affair and the appellant had established a sexual relationship with the prosecutrix based on the false promise of marrying her. The conduct of the accused clearly points out that he never had the intention of marrying the prosecutrix. He ran away when the two families were fixing the marriage. He married Priyanka Soni without informing the prosecutrix. Priyanka Soni confirmed that the negotiations regarding their marriage were going on from a year before their marriage. This clearly shows that the appellant had plans of marrying Priyanka Soni even when he established a sexual relationship with the prosecutrix. Therefore, the court held that the prosecution succeeded in proving the case against the appellant.

Also, the accused claimed that the prosecutrix and her family members were already aware that his marriage was fixed with Priyanka Soni and still they were pressuring him and his family to marry the prosecutrix. But the appellant failed to prove this point.

Considering all the facts and circumstances the court upheld the decision of the court and held that the accused never had the intention to marry the prosecutrix. He was lying to her from the very beginning. He made the false promise of marrying her in order to establish a sexual relationship with her. The prosecutrix gave her consent based on the false promise and, therefore, the consent would not be considered as per Section 90 of the IPC and hence accused is guilty of rape under Section 375. The court held this as a clear case of cheating and deception. The point that both the prosecutrix and the appellant have moved on in their lives is irrelevant and cannot be accepted.

The Supreme Court convicted the accused under Section 376 of IPC, though the term of punishment was reduced to 7 years. The court held that merely if the victim and the accused are married to another person, the accused cannot be discharged. A criminal would always have to suffer the consequences of his crime. Rape is a crime against humanity. A rape victim not only suffers physical but mental harm.

Relevant case laws

State of Punjab vs. Gurmeet Singh (1996)

In this case, the Hon’ble Supreme Court observed that in recent times, crime against women in general and rape in particular have risen. It is ironic that on the one hand we are celebrating women’s rights in all spheres and on the other hand we show little or no worry for her honour. It is a sad reflection on the perspective of the biases of society towards the violation of human dignity of the victims of sex crimes. A rapist not only infringes the privacy of the victim, and personal integrity, also causes serious psychological trauma, and physical harm. Rape is not just a “physical assault”. It seriously shatters the whole personality of the victim. A murderer destroys the physical body of his victim, while a rapist degrades the very soul of the victim.

Therefore, the courts must show a great accountability while trying an accused on charges of rape. The courts must tackle such cases with utmost sensitivity. The courts should examine the broader probabilities of a case. They should not be influenced by minor inconsistencies or insignificant mistakes in the statement of the prosecutrix, which are not fatal. If evidence of the prosecutrix adds confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The testimony of the prosecutrix must be given due importance in the light of the entire case and the Trial Court must be responsible and sensitive while dealing with such cases.

Pramod Suryabhan Pawar vs. The State of Maharashtra (2019)

In this case, the Hon’ble Supreme Court said that consent under the “misconception of facts” under Section 90 in the light of Section 375 has to satisfy two criteria:

promise of marriage was malafide or false;
a false promise has made the woman undergo sexual activity.

When the intention of man was to take the consent of women for sexual acts on the false pretext of marriage and with an intention not to fulfil the same, it vitiates the consent of woman. The promise of marriage must have been a false promise. If the woman knows the obstacles in the marriage but still chooses to engage in sexual activity and reside together then it is not a false promise. So, consent is not vitiated and no offence of rape is committed.

Naim Ahamed vs. State (NCT of Delhi) (2023)

In this case, the Hon’ble Supreme Court of India held that the expression “misconception of facts” given under Section 90 is in relation to the clauses of Section 375.

Section 375 describes seven circumstances under which the ‘rape’ could be said to have been committed. As per the third clause, a rape could be said to have been committed, even with the consent of the prosecutrix when it is obtained by putting her or any person in whom she is interested in fear of death or of hurt. As per the fourth, rape is committed with her consent, when the man knows that he is not her husband but she believes that she is lawfully married; and as per the fifth, rape is committed with her consent when at the time of giving the consent, the prosecutrix because of unsoundness of mind or intoxication or the administration of stupefying or unwholesome substance by the accused or some other, she is unable to understand the nature and consequences of that to which she gives consent, her consent would be treated as ‘no consent’ under the circumstances mentioned in Section 375 of Indian Penal Code, 1860.

Critical analysis of Anurag Soni vs. The State of Chhattisgarh (2019)

Judicial activism and judicial overreach

The present case can be analysed in the light of “judicial activism” and “judicial overreach”. If the judge, to secure the ends of justice and prevent the abuse of the process of the court, goes to any stretch is said to be judicially active. It is securing justice even in the non-availability of the respective law or pronouncement.

In this case, the act was, however, consensual but the consent was on the condition of marriage. If suppose the accused wouldn’t have promised to marry, the victim would not have said yes to the act. It was consensual but only on a condition of marriage. This suggests that the victim was not comfortable with the accused. The Hon’ble Court gave heed and empathy to the consent of the victim.

Rape vs. consensual sex

Hon’ble court differentiated between the offence of rape and the consensual sex. This way the court maintained the sentiments of the victim and her family that if someone obtains consent by way of a false promise of marriage with an intention to never fulfil it is not consensual only deception.

Misconception means an inaccurate idea about something. Here the woman was in an illusion of becoming her future wife, she would have dreamt of many things for her upcoming life. So, she gave her consent only to keep the feelings of her future husband. The man took its undue advantage.

Presumption of absence of consent was held to be appropriate as the accused tried to abort the baby and later on said that his parents were not agreeable. It clearly showed that he never wanted to marry the victim but to only satisfy his lust.

False promise vs. breach of promise

The court also considered false promise vs. breach of promise. A false promise at the outset is false, but the breach of promise is an inability to fulfil the promise because of any trying times. Here there were no such compelling circumstances so as to not marry the victim. Both the families were on the same boat. They decided to marry both of them as the only solution but he absconded with another woman and married her even without informing his parents.

The court kept in mind the plight of the victim and the message that may go to society through this decision. It awarded the punishment as determined by the lower courts but only reduced to seven years of rigorous imprisonment from ten years of imprisonment on the request of the counsel.

If the Hon’ble court had slanted towards its own social biases, and ignored the plight and despair of the victim there can be miscarriage of justice. This is the clear situation of judicial overreach where law is fragmented to bits and pieces only to support male dominant patriarchal setup. This case is a clear example of judicial activism and sensitivity towards the plight of the victim.

Emphasis on circumstantial evidence

The case came up with a new line of facts and circumstances. There were no strong precedents for this case. Though a lot of cases have talked upon the issue of rape, consent etc, however, this issue was never specifically dealt with. Therefore, it was difficult for both the prosecution and the respondent to prove their case. Also, it was equally difficult for the court to cite material in regard to this. The absence of precedents gave focus on the background, context and facts of the case. All material importance was given to the facts and circumstances which lead to the incident.

Societal stereotype of women

The two-judge bench, in this case, highlighted how a victim of rape suffers. There are two opinions of the case. The first opinion i.e. against the judgement is that the case is degrading a woman’s status rather than empowering it. While the second argument is that the case takes all the Sections of the women together and focuses on logical lines of argument.

Those who find flaws in the judgement belong to the first opinion group. They argue that the case is seen to be on the side of the women but thinking about it in depth one can figure out that maybe it is not! The case is based upon the stereotypical understanding of society that a woman becomes impure if she indulges into a sexual relationship before marriage. The case indicates that a good woman would only consent for sex if a marriage between the two is going to take place. The case put the offence and cheating and rape under the same umbrella which in turn is reducing the severity of the other. Also, if the offence of rape is committed then also the judgment stands on wrong pillars, since the accused got a punishment of 7 years for the offence rape. The case in its best was trying to empower women and doing justice to them, but has it not degraded the women instead? The case is indicating that commitment-free sex is impure for a woman and hence, a crime. But this can be one argument which may be the educated urban women would make.

Whereas, the second opinion has a totally opposite argument and is in favour of the judgement. It argues that the case talks about women in general and this would include those living in the villages. The fact that our country has still not accepted women as equal to men cannot be denied. There are villages, communities and even cities where women suffer a lot, even today. Here a girl who is not a virgin is blamed for her actions and not the boy, a woman is told to protect herself from the world. In this kind of situation, if a woman agrees to establish a sexual relationship, on the pretext of marriage then it would be injustice with her if that promise turns out to be false. The mindset she has, the society from where she belongs, would not accept her, she would be blamed. The man in this situation would suffer nothing, would roam freely. The basic line of argument is that the woman, in this case, only consented on the promise of marriage by the accused. If the accused dishonestly made a false promise, just to satisfy his lust, then in no case the consent would be considered voluntarily. The court delivered the judgement only on the argument that the consent was not voluntary, it was taken by fraud and hence the sexual relationship would not be considered consensual.

Conclusion

The issue that has been raised in this case is not a new one. Various High Courts have given judgments on this issue earlier as well. The Supreme Court also has taken a stand on this issue. But the judgement of Anurag Soni has more clearly and specifically addressed this issue. The court explicitly used Section 114-A of the Indian Evidence Act, 1872, the Section directs the court to presume the statement of the prosecutrix to be true. In earlier pronouncements, the burden of proof was on the prosecution but this judgement has held this point invalid. The case opened gateways for a new interpretation of Section 375 IPC and hence widened its ambit.

Though the judgement has faced criticism as well, it will seem right if seen in the context it is delivered in. Consent plays the most pivotal role in a relationship and if it is based upon fraud and misconception, then it can not only affect a girl physically but emotionally as well. All the aspects of a story are kept in mind while delivering a judgement. Now it would be interesting to know whether it is a full stop on this issue or any new pronouncements would be made.

Every day we come across a different story, of a woman being raped, molested, abused etc. but then with the passing of time it fades away. Every story comes with a new situation, a new face of inhuman behaviour turns up. Maybe we cannot stop crimes but we can punish the criminals. Therefore the role of the judiciary becomes very important in this regard. The court has to understand the sensitivity of the situation and should follow proper procedures and guidelines while dealing with a rape case. This case is a clear cut example of cheating and fraud to satisfy one’s lust. But the judiciary has rightly handled the situation to serve justice.

Here the court has set a precedent by not sticking to patriarchal setup. The court drifted away from the traditional defences of insufficient evidence, benefit of doubt, false cases, and giving bail to the accused. Here the court realised the potential harm of the rape to not only the body of the woman but to her dignity, mind, and psychology. This offence is the harassment of the woman. However, the prosecutrix got married subsequently, but this incident has left a lifelong stigma and scar on the mind and life of her. This has made her difficult to rehabilitate and reintegrate in the social fabric of the society. If the consent is extracted by way of fraud, or false promise it is not a consent. Any consent that was obtained on a false pretext of marriage is not a valid consent. This shows the malafide intention of the accused. This judgement shows the commitment of the Hon’ble Court to hold the accused responsible and accountable for his conduct even if both of them have married separately and started new lives and are living happily in their life. This case is also an example of victim sensitivity over being accused centric. However, the punishment was reduced to seven years from ten years but still it managed to create a balance between the emotions of the victim and judicial nuances. The court has proved that crime should be taken seriously and the legal procedure must be followed accordingly.

Frequently Asked Questions (FAQs)

What is the importance of distinguishing between “false promise of marriage” and “breach of promise”?

“False promise of marriage” indicates that the consent was obtained using deceptive means while “breach of promise” signifies denial of promise out of unprecedented or unwarranted circumstances. First instance signifies deceitfulness while the latter signifies circumstantial despair.

According to this judgement, which does not amount to valid consent?

According to this judgement, consent obtained through false promises, is not valid consent.

What are the implications of this judgement in the light of women rights in India?

Women rights always challenges the existence of women as domesticated entities or the object of consumption. This judgement protects the right of a woman with respect to her choice regarding life partnership as well not being used whenever attempted by men. This judgement seeks to protect the dignity and personal liberty of women.

Does this judgement address social stigma attached to premarital relations with women?

Yes, this judgement giving importance to valid consent and protecting women’s dignity addresses the social stigma attached to premarital relation to women.

References

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