Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances: Tripura High Court

Consent concerning Section 375, an active, reasoned deliberation about the intended sexual relations shall be implicit in IPC and two proposals have to be produced to demonstrate the victim’s permission by misconceiving the reality. The promise of marriage was untrue, one of these proposals was that the commitment to participate was directly related to the decision of the woman to engage in the sexual act. The judgement was passed by the High Court of Tripura in the case of Rajib Sharma v. The State Of Tripura [Crl. App(J). No.58 of 2019] by Division Bench consisting of Hon’ble Justice Arindam Lodh & S.G.Chattopadhyay.

The facts of the case are that the victim lodged the written alleging that the appellant had repeated sexual intercourse with her on the assurance of marriage as a result of which she became pregnant. When she was having 8 months of pregnancy, the appellant at the instigation of his mother, refused to maintain any relationship with her. Eventually, she delivered a female child. When she met the appellant at his home with her newborn baby, the appellant and his mother ousted her from their home after committing physical assault on her. Since then she was living with her parents along with her child, whereby the appellant was convicted for having committed an offence punishable under Section 376(1) IPC and sentenced to RI for 10 years and a fine of Rs.20,000.

Learned counsel for the appellant has contended that evidence adduced on behalf of the prosecution and the whole circumstances would indicate that the prosecutrix willingly consented to have sexual intercourse with the appellant as a result of her intimacy with the appellant and love for him and not because he promised to marry her because she was well aware that they belonged to two different communities and her marriage with the appellant would be difficult on account of her caste consideration. As a result consent of the victim was free consent.

Learned counsel for the respondent contended that consent given by the prosecutrix was vitiated by misconception in terms of Section 90 IPC because her consent was obtained by the appellant under the pretext of marriage by misconstruing his true intention to her, the accused had no intention of actually marrying the prosecutrix. The consent given by the prosecutrix would not excuse the appellant from the charge of rape because such consent was vitiated by misconception of fact as per Section 90 IPC.

While dismissing the appeal, the court relied upon Anurag Soni vs. the State of Chattisgarh, wherein it was held that “promise of marriage for obtaining consent for sexual intercourse without any actual intention to marry vitiates the consent and such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and in such case, consent would not excuse the offender charged under Section 376 IPC.”

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