bombay high court

Consent under misconception of facts is not a free consent in the eyes on law in cases of sexual offences: Bombay High Court

FIR and proceedings cannot be quashed against the applicant under section 482 of CrPC challenging the validity of the FIR in cases where it has been lodged by him where the offence of rape has been committed just before the weeding if he calls it off later, the decision on this subject matter was given by Justice AS Chandurkar and Justice GA Sanap in the case of NAVNEET ASHOK BANGALKAR V. STATE OF MAHARASHTRA AND ANR [CRIMINAL APPLICATION(APL) NO. 853 OF 2021]

In this case the parties were supposed to get married in February 2021 but they could not because of covid cases were high at that time as a result of which it got postponed after even the complainant tested positive. During June 2021 a party was organized by the applicant for the complainant in which both of them had sexual intercourse in which the complainant claimed to have consented to it only because they were getting married in a few days after which the applicant allegedly started avoiding the complainant and sought 8 day’s time to get a date for marriage fixed.  The family of the applicant refused for the marriage and gave the reason that the complainant “is addicted to liquor” based on this the complainant-initiated proceedings against the applicant under section 376 and section 417 of IPC. The applicant on the other hand also alleged that the complainant used to not talk to the applicant properly, quarrel over small issues as a result of which the applicant found out that the complainant is not interested and they are not compatible. On 15.06.2021 the applicant even received threats from an unknown number from a caller threatening them to all off the marriage against which an FIR was also lodged in Pauni Police Station and it turned out the person behind those calls was a close friend of complainant. After various meetings held between both families, the family of complainant family demanded Rs. 50,00,000 for calling off the marriage to which the applicant’s family did not succumb.

In the present case the Bombay High Court rejected the defence of the applicant stating that he the facts that the complainant started avoiding the applicant, they used to quarrel over small issues and the non-compatibility issues between the applicant and respondent at the stage the marriage was called off could not be considered as a defence at that stage and in the view of this the High Court rejected the plea of the applicant calling his intention “sinister”. Perhaps in the present case the court should have taken a wider view, even though many Supreme Court Judgements show that the sexual intercourse on false pretext of marriage is rape what is important to take into account is that it is considered as the offence of “rape” because there is a misconception in the mind of the victim at the time of the offence. In the present case taking into account the marriage had also been finalized earlier there surely is some inclination towards believing the intent of the accused to marry the complainant. Further the decisions taken such as calling off the wedding are not only taken by the applicant but his family as well, added to that the court did not reiterate upon the fact that the family of complainant Demanded Rs. 50,00,000 as a cost for calling off the wedding and after the admission of evidence that it was a friend of complainant that threatened the applicant over call there is no reason the same is not a case of extortion. The High Court should hence while adjudicating the claim reiterated upon the conduct of applicant’s family and friends and take into account how the decisions of family influence the decisions of accused and if it was not for the conduct of everyone except the accused and he would still want to marry because at the time of sexual intercourse that what his intention was, then is that really “misconception”?

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Judgment Reviewed by Meenakshi Jena

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