Validating the Consent given under Fear or Misconception: Gauhati High Court

The law is very clear that a Simple promise to Marry without any expectation will not give rise to “Misconception of facts” within the meaning to section 90 Indian Penal Code held by the Gauhati High Court before the HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA in the matters of Sri Raktim and Ors v. The State of Assam And Ors. [Crl.Rev.P./228/2018] 

The background of the case arises from the 20 years old girl having a love affair with the Petitioner. Both of them eloped from the home and cohabitated without marriage. The father of the girl lodged an FIR before the Police that his daughter was kidnapped by the petitioner on the promise to get married. Subsequently, the petitioner handed over the girl to his paternal uncle. Regarding this, the girl informed her parents over the telephone and she was bought back home. 

After the investigation, the Police filed Charged Sheet against the Petitioner and his paternal uncle under Section 419/366 of the IPC and the additional charges against the petitioner was charged under Section 376 of IPC. Section 366 of IPC states the “A Person kidnaps or abducts any women with the intent to compel to get married is a punishable offence” Section 419 of IPC states that “Punishment for cheating by personation” and Section 376 of IPC states that “Punishment for Sexual assault” 

During the Trial court, the victim girl admitted that she is in love with the petitioner and one day petitioner proposed to marry her before eloping. After eloping the situation was different in the sense that the Victim girl refuse to marry the petitioner as stated he beats her and the paternal uncle forcefully puts Vermilion on her head. The victim stayed here for 4 days and the petitioner had forcibly sexually intercourse with her against her will. Thereafter she borrowed a phone and informed her parents. The judgement passed by the trial court and appellate court is not Sustainable in law and has committed a serious error while appreciating the evidence in the record and arrived at the erroneous findings.

The Hon’ble Court held that “The victim claims that the petitioner Proposed to marry and she accepted the proposal. That is why she has gone with him. The Victim girl has attained sufficient maturity at the relevant time of occurrence” The Court holds the Victim girl was a consenting party for the act of the petitioner. 


Click here to read the Judgement.

Judgement Reviewed by – Kaviya S.

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