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Affair not discharging the promise of marriage cannot be held as misrepresentation : Supreme Court

In the case of Maheshwar Tigga Vs State of Jharkhand, Criminal Appeal no 635 of 2020 (Arising out of SLP (Crl.) No.393 of 2020), Supreme Court acquitted the accused in the matter concerning whether failure to marry proves that the appellant never intended to marry and had fraudulently misrepresented to gain sexual favours.

The accused belongs to the Scheduled caste while the Respondent prosecutrix follows Christianity. The Respondent had lodged a complaint against the accused few days prior to the marriage of the accused with some other girl. The complaint was filed under the charge of assault and rape alleging that four years ago the appellant had outraged her modesty at knife-point. The delay in the filing of the Complaint was justified by the appellants promise to marry the respondent and failure to come to a settlement. The Respondent claimed to be of 14 years of age when the first incident of alleged rape had taken place. Considering the testimony, the Trial court had convicted the appellant with total of 8 years and 1-month imprisonment along with fine. Further Karnataka High Court rejected the appeal. Hence, the appellants approached the Supreme Court.

The contention of the appellant was that they were in a love relationship and had engaged into consensual intercourse without any misrepresentation of facts. The letters written by both the appellant and the respondent were examined and by the language of the letters it is clear that both were involved in an affair which they hoped to consummate into a marriage. Also, as alleged there is no evidence regarding the age of the respondent concerning the first incident of rape. According to the medical examiner the respondent was aged approximately 25 years and as per the testimony of the respondent’s cousin who is 30 years of age the respondent is 6 years younger to him. No school records were also provided to prove that the respondent was under-age at the alleged first incident.

The contention of the Respondent is that after the first incident of rape and assault the respondent parents approached the appellant who promised them to marry the respondent. Owing to such promise the respondent further had intercourse and lived with the appellant for 15 days. The respondent claimed that the appellant never had the intention of marrying her and used her for his desires.

The court observed that the accused was questioned in a very brief and casual manner. Placing reliance on Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was held, ‘Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence…’

Supreme court referred the recent case of Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and Others, AIR 2019 SC 327 and in Pramod Suryabhan Pawar vs. State of Maharashtra and another, (2019) 9 SCC 608  which dealt in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities,  the court had quashed the proceedings.

Failure of the respondent to prove the age and by examining the letters exchanged between the parties it is evident that they were in love and wished to marry but the respondent was aware of them belonging to different religion and thus failure to marry cannot prove that the appellant never intended to marry and had fraudulently misrepresented only in order to establish physical relation with her. The court held that a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. Hence, the contention of rape and assault cannot be sustained as there are discrepancies between the facts alleged. Thus, the accused was acquitted.

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