‘Every breach of promise to marry is not rape’

New Delhi: The Supreme Court observed that it would be a folly to treat every breach of promise to marry as a false promise and to prosecute a person for the offence of rape under Section 376 IPC. One cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise, the bench of Justices Ajay Rastogi and Bela M Trivedi observed while acquitting a man who was concurrently convicted in a rape case. He was sentenced to 10 years imprisonment by the trial court.

In this case, it had come on record that (i) Prosecutrix was a married woman having three children. (ii) Accused was staying in a tenanted premises situated in front of the house of the prosecutrix. (iii) Though initially hesitant, the prosecutrix developed liking for the accused, and both started having sexual relationship with each other. (iv) A child was born out of the relationship (v) The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children. (vi) The prosecutrix still continued to live with the accused in separate premises. (vii) The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter prosecutrix permanently left her three children with her husband. (viii) The prosecutrix lodged the complaint on 21st March, 2015 alleging that she had consented for sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry.

Taking these factual aspects, the bench observed thus while acquitting the accused:

“The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed a liking. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premise without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr.P.C. had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC.”

The bench, therefore, set aside the trial court and High Court judgments except for the direction for the payment of compensation to the prosecutrix.