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Can’t Say Physical Relationship Was Without Consent If Married Woman Having Experience in Sex Doesn’t Offer Resistance: Allahabad HC

CASE TITLE: Rakesh Yadav and 2 Others vs. State of U.P. and Another

DECIDED ON: 04.08.2023

CORAM: Hon’ble Sanjay Kumar Singh,J.

INTRODUCTION

The Allahabad High Court made a noteworthy observation that when a married woman with prior sexual experience doesn’t oppose a physical relationship, it cannot be concluded that her involvement with a man was non-consensual. Justice Sanjay Kumar Singh’s bench stated this while halting legal actions against an individual who was accused of raping a 40-year-old married woman. The Court pointed out that the purported victim, while still married and with two children, chose to enter a live-in arrangement with the first party involved (Rakesh Yadav) to pursue her goal of marrying him, without obtaining a divorce from her husband.

FACTS

In essence, the Court was addressing the request presented by three accused individuals aiming to dismiss the official accusation documented against them. Subsequently, charges were acknowledged against applicant no.1 under Sections 376 and 506 of the IPC, and against applicant nos. 2 and 3 under Sections 504 and 506 of the IPC by the Additional Civil Judge (Junior Division), New Court No.III/Judicial Magistrate, Jaunpur.

As per the version provided by the alleged victim, she entered into matrimony in 2001 with her spouse, resulting in the birth of two children from their union. Due to a strained relationship with her husband, Applicant No. 1, Rakesh Yadav, purportedly took advantage of the situation and lured her by promising to marry her. Consequently, she resided with him for a period of five months, during which he engaged in a physical relationship with her under the guise of marriage.

Furthermore, the accuser asserted that a co-accused, Rajesh Yadav (applicant no. 2), and Lal Bahadur (applicant no. 3), applicant no.1’s brother and father respectively, also assured her of her impending marriage to Rakesh Yadav. Upon her insistence, they obtained her signature on a plain stamp paper and falsely claimed that they had executed a notarized marriage, even though no such marriage had taken place.

Contrarily, the counsel representing the applicants contended that the alleged victim, a 40-year-old married woman and a mother of two children, possessed the maturity to comprehend the implications and ethical aspects of the actions for which she gave consent. Therefore, it was argued that this case did not involve rape but rather a consensual relationship between applicant no.1 and the complainant.

CASE ANALYSIS AND DECISION

Noting the need for thorough examination, the Court suspended any additional progress in the criminal case involving the applicants. Moreover, the Court provided the opposing parties with the freedom to submit a counter affidavit within a span of six weeks. The case has been scheduled for a hearing in approximately nine weeks’ time.

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Written by- Mansi Malpani

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Does a False pretext of marriage amount to rape -?

ABSTRACT-

The present research indicates, a question frequently arised in court as to whether sexual intercourse with women constitutes rape if consent was obtained through a false promise of marriage under Section 375 of the Indian Penal Code, 1860. Rape was considered a crime in India, and offenders were punished. Because there is a sense of juvenile freedom in certain parts of the world, the word Marriage may have acquired a very negative aura around it. Marriage is viewed as a holy bond between two people that transcends all physical, emotional, and spiritual barriers. But at the same time on a different note, it is viewed negatively by young people in some societies. You are against it when you are young because your physical body is in a certain mode. Marriage appears to be a bond and a chain. Different religions and cultures treat marriage in a way their holy book prescribes it.  Although the determining factor varies from case to case, the Indian Judiciary has recognized marriage through deception as a crime of rape.

DOES IT AMOUNT TO RAPE – ?

The main difference is consensual sex and non -consensual sex. The broadness of consensual sex has to determined on one of many grounds, whether it falls within the ambit or not. i.e. false promise to matrimony. Consensual sex is defined as sexual activity between the parties that is permitted by both of them. When a man engages in sexual activity with a woman against her will and without her consent, it is called rape.

In the modern world, where couples and cohabitation are common, particularly in urban areas, and are also tolerated by society, also when the mind of the adult is twice grown as the age at present can be said sex is no longer seen as taboo. Consensual sexual liaisons between two men and women are now perceived as a liberating act rather than a sin in today’s evolving environment. As a result, a distinction between consenting sexual activity and rape has been made in some instances, especially where there is a high risk of abuse.

[1]In one instance (Saleha Khatoon v. State of Bihar, 1988), the prosecution procured consent for sexual activity in return for a fictitious promise of marriage. Following the filing of a complaint, a police investigation was conducted, and the police report, which was submitted in accordance with Section 173 of the Criminal Procedure Code, established a case of violation under Section 376 of the IPC.

However, the judge tried the defendant under Section 498 for detaining a married woman rather than Section 376 for rape, most likely because the prosecutor was already married

Obtaining consent through deception, deception, or unsuitable persuasion is another method of Rape. Consent is crucial when committing rape. Depending on whether or not consent has been given, sexual activity is either legal or illegal.

Consent may be given voluntarily or fraudulently, compelled or uninformed, implicit or explicit, informed or uninformed. A violation of Indian law is having a sexual relationship while being falsely promised marriage. Soliciting sexual consent under the guise of marriage does not exonerate a person from rape accusations. If a man makes a woman a false promise that he will marry her so they can have a sexual relationship even though he has no intention of doing so, and she accepts the promise, then the consent was obtained fraudulently.\

 SECTION 375 & 90 OF IPC DEFINE RAPE AND CONSENT

  1. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and[2]

Section 90 defines the situations in which the consent apparently to be given by a person is not sufficient for purposes of the Code. It was suggested that consent obtained from a person by putting him under hypnotic or other occult influence should be specifically mentioned in the section. [3]

JUDICIAL ANALYSIS –

In numerous cases, the Supreme Court of India has explained the distinction between a promise and a false promise and breaking it.

In the case of Naushad (State of Uttar Pradesh v. Naushad, 2013), the defendant had been seeing the prosecutor for the previous two years and had thought that he would marry her. On the basis of this assurance, the defendant Naushad vowed to wed the victim and frequently engaged in physical contact with her.She was raped, and as a result, she got pregnant.

The defendant was found guilty of betraying her trust by refusing to wed her and given a life sentence for raping her while pretending to be engaged in a fake marriage The defendant also allegedly obtained her consent in accordance with Section 90 of the IPC in the mistaken belief that he could wed her.

In the Sachin case (Sachin @ Devendra Gajanand Sangray v. State of Gujarat, 2015), the accused and the victim had been in a live-in relationship and cohabiting in Surat, Gujarat for a year. They were also coworkers. Due to a personal feud that started between them on March 1, 2012, they broke up after a year. On March 10, 2012, he visited the girl’s home to extend an invitation to his wedding on March 12, 2012. The girl’s complaint claims that the defendant  raped her after pretending to want to marry her.[4]

As stated earlier it depends from case to case in a recent judgement, Orissa high court has declared the SEXUAL INTERCOURSE ON THE FALSE PRETEXT OF MARRIAGE does not amount to rape

The court made the observations last month while granting bail to a man accused of raping a woman on the pretext of marriage.

“A consensual relationship without even any assurance, obviously will not attract the offence under section 376 (punishment for rape) of the Indian Penal Code. The law holding that false promise to marriage amounts to rape appears to be erroneous,”

[5]“It is an undeniable fact that our society is still largely conservative when it comes to matters of sex and sexuality. Virginity is a prized element. The victim being a major girl with a sound mind, there seems to be no question of anyone being in a position to induce her into a physical relationship under the assurance of marriage. There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy,” the judge said.[6]

CONCLUSION

“While a murderer destroys the physical frame of the victim, a rapist degrades and de les the soul of a helpless female.”(Tulsidas Kanolkar v. State of Goa, 2003)

Perhaps most significantly under Indian law, ending a marriage engagement after having sex does not automatically constitute rape. Due to the absence of probate legislation, rape by false promise of marriage cases are decided at the court’s discretion after taking all relevant factors into account.

There must be some use of force and a complete lack of consent in order to prove the first aspect of rape. First-degree rape is defined as coerced sexual contact with the victim’s consent. Furthermore, rape in the second degree, which carries a less severe punishment than rape in the first, may be defined as consent obtained through a mistake of fact, misrepresentation, or deception.

The best form to come to a decision in this area of cases is to follow the Latin maxim which is the very basis of law Audi alteram partem listen to the other side”, or “let the other side be heard as well[7]

Written by – Steffi Desousa

[1] file:///C:/Users/Steffi%20Desousa/Downloads/JPSP+-+2022+-+7.pdf

[2] https://indiankanoon.org/doc/623254/

[3]https://www.advocatekhoj.com/library/lawreports/indianpenalcode/26.php?Title=Indian%20Penal%20Code&STitle=Section%2090#:~:text=Section%2090%20defines%20the%20situations,specifically%20mentioned%20in%20the%20section.

[4] [4] file:///C:/Users/Steffi%20Desousa/Downloads/JPSP+-+2022+-+7.pdf

[5] https://www.hindustantimes.com/india-news/consensual-sex-on-pretext-of-marriage-not-rape-orissa-hc-101673290400807.html

[6] https://www.hindustantimes.com/india-news/consensual-sex-on-pretext-of-marriage-not-rape-orissa-hc-101673290400807.html

 

[7] https://en.wikipedia.org/wiki/Audi_alteram_partem

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Marriage and Live-In Relationship in India: A Socio-Legal study

Introduction 

“Living with the partner has no defined meaning or scope. The phrase “live-in relationship” refers to a living situation in which an unmarried couple lives together in a long-term relationship that mimics marriage. To the outside world, a pair portrays themselves as a couple. ‘Live in a relationship’ refers to a relationship in which the parties are not married in the sense of a legal marriage solemnization. Nonetheless, the parties live as a couple, demonstrating to the rest of the world that their relationship is stable and consistent.

 A ‘common law marriage’ is a term used to describe such a partnership. Marriage is a wonderful feeling that can unite people of every skin tone, ethnicity, socioeconomic status, or sexual orientation. Yet, having more time altogether, and perhaps even moving in together, can help couples strengthen and discover their love for one another. The terms “marriage” and “live-in relation” become relevant in this context.

It is generally believed by society and the law that married spouses should live together. Social acceptance has its own allure and gratification. Young folks nowadays can stay with their spouses even without the constraints of arranged weddings because of the rise of live-in relationships. There are benefits and drawbacks to all these societally created ways of expressing and experiencing love and romance.

 Live-in Relationships and the Law

“There is no explicit legislation in India that addresses live-in partnerships. The Hindu 

Marriage Act of 1955 provides legitimacy, succession, and property rights to children born in ‘void’ and ‘voidable’ marriages. The 2005 Protection of Women from Domestic Violence Act also provides some protection to the wounded parties from any sort of atrocity performed against females in “relationships like marriage”. 

“A woman in a live-in relationship is entitled to the same legal rights as a wife if she has been in such a relationship for a reasonable period. This does not make an invalid marriage valid or provide legal recognition to bigamous marriages. While giving support to the woman with whom he is in a bigamous/adulterous relationship, a man may face allegations of adultery and bigamy.”  

The Treatment of Live-in Relationships by Indian Judges

“The Indian judiciary does not explicitly promote or condemn such live-in relationships. In each case, the judiciary simply dispenses justice by the law. The primary goal of the judiciary is to prevent a miscarriage of justice. The judiciary analyses cultural norms and constitutional principles while deciding cases. The meaning of the term “like marriage” is not immediately clear, and the PWEDVA is already arguing about it.”  

“The petitioner in Aruna Parmod Shah Vs UOI[1] challenged the Act’s validity, claiming that it discriminates against men and that Section 2(f) of the Act’s definition of “domestic relationship” is unconstitutional. In the second instance, the petitioner argued that equating “marriage-like relationships” with “married” status deprives the lawfully married wife of her rights. The Delhi High Court dismissed both challenges to the Act’s constitutionality. In answer to the second charge, the court ruled that a wife, as well as a woman living with a man as his “common law” wife or even a mistress, should be regarded similarly. In this decision, the judges defined “a connection resembling marriage” to encompass both a “common law marriage” and a relationship with a “mistress,” without going into detail about the legal and social consequences of these terms.”  

The Allahabad High Court held in Payal Katara Vs Superintendent Nari and Others[2] that anybody above the age of 21 has the right to travel and that anyone, man, or woman, can live together if they like. In the case of Patel and others, the Supreme Court declared that a live-in relationship between two adults who are not married is not illegal. The Supreme Court ruled in Lata Singh Vs State of U.P. & Anr[3] that live-in relationships are only permitted between married important individuals of different genders.”  

“The Apex Court ruled in the Radhika Vs State of M.P.[4] that if a man and woman have been living together for a long time, they would be regarded married and their child will be declared genuine. In Abhijit Bhikaseth Auto Vs State of Maharashtra and Others[5], the Supreme Court of India declared on September 16, 2009, that a woman does not have to establish her marriage to be entitled to maintenance under section 125 of the Cr.P.C. Under Section 125 of the Criminal Procedure Code, a woman in a live-in relationship may be entitled to assistance.”  

“The Supreme Court awarded the live-in partner the status of the wife in Chellamma Vs Tillamma7. Katju J. and Mishra J. both stated that a man and a woman can live together even if they are not married in their opinion. Although society considers this immoral, it is not illegal. It is important to distinguish between law and morality.

The court went even further, declaring that children born to such a parent are legitimate and valid. The heirs of such a person can only inherit the property of his or her parents. This is because such offspring are not granted coparcenary rights to their parents’ inherited Hindu undivided family property.

During S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court ruled that children born to unmarried parents in a common-law relationship are entitled to legal protection (1993). The Supreme Court has ruled that under Article 14 of both the Indian Evidence Act, of 1872, a probability of marriage exists when a man and a woman share a home and live together for a prolonged period. This means their offspring can officially be a part of the family tree and perhaps get an inheritance. 

The Apex Court ruled in Bharatha Matha v. Vijaya Renganathan (2010) that babies living with cohabiting couples are entitled to a share of their parent’s assets. The Apex Court determined that, if the connection lasts long enough, a kid born in such a situation may not be regarded as an illegitimate immigrant. 

They are the legal proprietors of their parents’ possessions. One benefit of the ruling is that it will not only deter couples from hastily divorcing, but it will also encourage couples to have children, who were previously anxious about their children’s future if they divorced. In Madan Mohan Singh & Ors. Vs Rajni Kant & Anr[6], the court held that a long-term live-in relationship cannot be deemed a “walk in and walk out” relationship and that the parties are presumed to be married.”  

India’s highest court has ruled that a live-in relationship is not a crime in the case of D. Velusamy Vs D. Patchaiammal[7]. The petition alleges that the appellant moved out of the respondent’s father’s house after two or three years and began living in his own country, but that he continued to visit the respondent regularly. According to the lower Family Court, the appellant was married to the respondent, not Lakshmi. The High Court and the Family Court Judge in Coimbatore’s rulings were overruled, and the matter was remanded to be considered again by the law.”  

“According to the judges in the case, the word marriage is not specifically defined in the PWDVA, 2005. The judges decided that a relationship like marriage is equal to common- law marriage, tying it to the prevalent “live-in” partnerships in the west. If a man had a ‘keep,’ whom he financially supports and hires solely for sexual purposes and/or as a servant, it would not be a marriage-like arrangement, the judges said. A ‘domestic relationship’ is more than merely hanging around on weekends or having a one-night stand. The Supreme Court’s ruling would exclude many ladies who have had a live-in relationship from benefiting from the 2005 Act.”  

By stating this, the judges appear to be implying that the term “live in relationship” has a far broader scope than “relationship like marriage”. In 2010, the New Jersey State Assembly passed a law requiring the parties to have a formal agreement before asserting palimony. Palimony is a phrase used in the United States to denote the provision of maintenance to a woman who has lived with a man for a long time without marrying him and then been abandoned by him. In Alok Kumar Vs State & Anr[8], the complainant sought to have his First Information Report (FIR) dismissed.”  

Suggestions 

  • “Legal system does not want to recognize all live-in partnerships as marriages. Only solid and sufficiently long-term relationships between the parties qualify for protection under the 2005 Act. “
  • “Simultaneously, it is not hostile to new emerging partnerships such as live-in couples, which are particularly common in cities. The judge should be pragmatic rather than dogmatic when dealing with such issues. “
  • “In the absence of unambiguous social and legal categorization of non-marital relationships, the field has been left wide open.”
  • “Even the highest court authorities preach on the need to separate a “relation like marriage” from a “servant” or a “keep” and a “one night stand”. It should also be noted that none of these legislative measures are intended to encompass the entire spectrum of live-in partnerships.”

Conclusion

“It is encouraging for the country that, rather than ignoring the problem, it has opted to take steps to safeguard women living in shared households, even if they are not married. Given India’s social and cultural context, enacting legislation to govern live-in relationships would be unwise. Most individuals choose this option to escape the burden and commitments that come with a long-term commitment.

 In the event of a dispute on whether to continue the partnership, a partner is free to come and go as he pleases without the tedium and complication of divorce processes. That is how some people prefer it. It is not the job of the government to regulate and monitor human lives and decisions on such a minute scale. “  

“It is a person’s choice whether to marry or get into a live-in relationship. I believe that the existing system in the United Kingdom and other nations should be studied. Couples should be able to sign cohabitation contracts outlining their rights and responsibilities if they so want.”  

“Even then, the rights and responsibilities will be limited in comparison to those granted in marriage. Another important aspect to consider is that, even under the Domestic Violence Act of 2005, the man in a live-in relationship has no legal rights. This part of Indian legislation must also be investigated.”  

“In India’s current marriage laws, common-law marriages, or partnerships in the form of marriage must be recognized and provided for. Wherever there is a need to change the legislation to give rights and responsibilities for such a partnership, it should be done. There is a need to restructure the legal system to meet societal changes, but there is no need to establish new and distinct legislation to do so.”  

References

  • Landmark Judgments- Live-In Relationship: SC’s Judgments Concerning the Legal

Standing   Of                Live-In      Relationships      lawyersclubindia,

https://www.lawyersclubindia.com/articles/landmark-judgments-live-in-

relationshipsc-s-judgments-concerning-the-legal-standing-of-live-in-relationships-14068.

asp

 

 

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Written by- Anushka Satwani

[1] Aruna Parmod Shah Vs UOI 2008(102) DRJ543. 

[2] Payal Katara Vs Superintendent Nari and Others AIR 2001 All 254. 

[3] Lata Singh Vs State of U.P. & Anr AIR 2006 SC 2522. 

[4] Radhika Vs State of M.P. AIR 1966 MP 134, (1969) ILLJ 623 MP. 

[5] Abhijit Bhikaseth Auto Vs State Of Maharashtra and Others AIR 2009 (NOC) 808 (Bom.).  7 Chellamma Vs Tillamma AIR 2009 SC 112. 

[6] Madan Mohan Singh & Ors. Vs Rajni Kant & Anr AIR 1992 SC 756 

[7] D. Velusamy Vs D. Patchaiammal 2010 10 SCC 469 

[8] Alok Kumar Vs State & Anr 1968 AIR 453, 1968 SCR (1) 813  

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Karnataka High Court Rules: Married Woman Cannot Allege Cheating by Man for Breach of Promise of Marriage

Karnataka High Court

Prajith R v. XXX & ANR

CRIMINAL PETITION No.544 OF 2021

Bench-  HON’BLE MR. JUSTICE M. NAGAPRASANNA

Decided On 16-06-2023

Facts of the case-

The 1st respondent, who is also the complainant, seeks to file a complaint against the petitioner, who is the sole accused. The complainant lodged the complaint on 10-11-2020, making specific allegations against the petitioner. According to the complainant’s account, she is married to a man named Jagadish. When she was eight months pregnant, her husband dropped her off at her parents’ house in Arakalgud, Hassan District. After two years, Jagadish returned to the matrimonial house and took the complainant and their daughter back to Bangalore. However, after staying together for about six months, Jagadish left the house and did not return for some time.

Due to this situation, the complainant had to find employment at Mariko Marketing Company. It was during her employment there that she came into contact with the petitioner. Allegedly, the petitioner promised to marry the complainant. The complainant informed the petitioner that she was five years older than him, but she was lured into a relationship with him based on his assurance of marriage. When the petitioner failed to fulfill his promise of marriage, the complainant filed a complaint with the jurisdictional police on 10.11.2020, accusing the petitioner of offenses punishable under Sections 498A, 504, 507, and 417 of the Indian Penal Code (IPC). The petitioner approaches this Court through the present petition in response to the registration of the crime against him.

Judgement

the court has dismissed the FIR filed by a married woman against a man, alleging that he deceived her by failing to fulfill his promise of marriage. Upon reviewing the records, the bench observed that the petitioner resided in Malaysia and regularly sent money to the complainant for her living expenses. The complainant claimed that this act established the man as her husband. Additionally, she accused him of ceasing communication with her.

The court pointed out that no evidence was presented to demonstrate that the petitioner was ever married to the complainant. The offense in question falls under Section 498A of the IPC (Indian Penal Code), which deals with cruelty towards married women. Furthermore, the complainant admitted that she was already married and had a child from her current marriage.

The court found it perplexing that the petitioner could be considered the complainant’s husband when she was already married. The complainant did not mention obtaining a divorce decree from her previous husband in her objections. As long as the earlier marriage remained intact, it could not be claimed that the petitioner was her husband and responsible for the maintenance of the complainant and her daughter.

Regarding the monthly financial assistance provided by the petitioner to the woman, the bench clarified that merely sending money on some occasions does not establish an obligation for the petitioner to support them in the absence of a legal marital bond between the complainant and the petitioner.

Based on these considerations, the court decided to quash the complaint.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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