This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article is a case comment on the recent Supreme Court Judgment, Anurag Soni v. State of Chattisgarh. The author has discussed the case in detail and then has critically analysed the judgment.
Introduction and Background of the Case
Section 375 of the Indian Penal Code 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 condition where sexual intercourse can be termed as rape. But still, with growing and changing times the judiciary faces new situations every day. And there are cases which are not be 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 v. State of Chattisgarh, is a criminal appeal in the Supreme Court. The judgment 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 came up. A girl and a boy can be in a love affair but that doesn’t necessarily mean that the girl had 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. Maybe because marriage in India is a license for man to have a sexual relationship with his wife.
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 so obtained would not be considered as a valid consent considering Section 90 of IPC.
Cases in a country are decided on the basis of the background of the people in the case. In a country like India, society connects the reputation of the whole family with the character of the females of the house. And the court has to take this into account. The prosecutrix in the present case was reluctant to have a physical relationship with the appellant. But she only consented when the accused made the promise of marrying her. Since the promise which he made turned out to be false, then there remains no basis for her consent, which eventually means that she never consented to have a sexual relationship with the appellant.
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. And 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 procedure 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.
Facts of The Case
At the time of the incident, the prosecutrix was the 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. And therefore she finally disclosed all that happened to her parents and her parents went to the appellant’s parents. Both the family 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 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 judgment 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 judgment 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.
The appellant, in the Supreme Court, argued that the allegations made by the prosecution against him are false. The counsel appearing for the appellant fervently 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 while categorising the incident as rape under Section 375 IPC.
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 CRPC 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 pressurized 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 has only committed the wrong of “Breach of Promise” and hence should not be punished under Section 376 of the IPC.
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.
The State is the respondent in the present case, there are 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 tries 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 one 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. And is therefore rightly convicted under Section 376 of the IPC
Major Issue before the Supreme Court
After listening to the arguments from both sides and going through the judgments 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?” the court discussed the issue in detail by citing some of the major pronouncements. The issue of consent by misconception was also discussed in detail.
Case Laws referred by the Supreme Court
A number of cases were referred by the Supreme Court in order to deliver this judgment. Reliance was placed on precedents to understand the scope and ambit of Section 375 and Section 90 of the IPC.
The court referred to the case of Kaini Rajan v. State of Kerala , 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.”
Next, the case of Deepak Gulati v. State of Haryana  was observed. 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. And 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.”
Further, in the case of Yedla Srinivasan Rao v. State of Andhra Pradesh , Section 114-A of the Indian Evidence Act was discussed. 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. And 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.
“Presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women.”
With similar facts and circumstances is the case of State of U.P. v. Naushad , where also 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.
The court also highlighted the case of Dr Dhruvaram Murlidhar Sonar v. The State of Maharashtra  in which held that the distinction between Rape and Consensual sex is very clear. And therefore, in such cases, the court has to clearly examine the intention of the accused. Also, there is a difference between a mere breach of promise and not fulfilling a promise. The circumstances hence play a pivotal role.
Finally, a Delhi High Court case, Sujit Ranjan v. State , was referred. 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 has 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. And 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 is 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 from 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. And 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 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. And rape is a crime against humanity. A rape victim not only suffers physical but mental harm.
Critical Analysis of The Judgment
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. 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.
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 judgment 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 have focused on logical lines of arguments.
Those who find flaws in the judgment belongs to the first opinion group. They argue that the case is seen to be on the sides of the women but thinking about it in deep one can figure out that maybe it is not! The case is based upon the stereotypical understanding of the 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 judgment. 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 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. And 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. And 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. And 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 judgment 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.
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 judgment 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 judgment has held this point invalid. The case open gateways for a new interpretation of Section 375 IPC and hence widened its ambit.
Though the judgment 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 judgment. And now it would be interesting to know whether it is a full stop on this issue or any new pronouncements would be made.
- (2013) 9 SCC 113
- (2013) 7 SCC 675
- (2006) 11 SCC 615
- (2013) 16 SCC 651
- (2019) SCC Online 3100
- [Criminal Appeal No. 248 of 2011 decided on 27.01.2011]