HYDERABAD: The Hyderabad High Court has held that consent given by a prosecutrix (female victim) for having sex with a man - under the misconception that tying a mangalsutra in front of a deity is as good as a marriage - is no consent at all in the eyes of the law. In such a case, the man can be convicted for rape if the court concludes that his motives are mala fide in nature.
Justice B Siva Sankara Rao made these observations while dismissing a revision petition filed by one Kumar seeking an order against a verdict passed by the Judicial First Class Magistrate, Bodhan.
The police had filed a chargesheet against the accused following a complaint from the victim. The charges were framed under Sections 420 and 493 of the IPC. According to the chargesheet, there was a love affair between the victim and the petitioner/accused since Intermediate first year. He promised to marry her and both went to Mancherial and stayed for three days but the marriage didn’t materialise.
The accused had claimed to have contacted his parents and informed them of his wish to marry the woman. But, as they allegedly rejected the proposal, the duo decided to go somewhere else and get married.
Accordingly, they went to the Kali temple at the Ramakrishna Beach, Visakhapatnam and got married. The accused had tied the mangalsutra around neck of the victim and thereafter, they stayed in a rented room as husband and wife and joined to work in a shop at Visakhapatnam. They led conjugal life for about a month and a half.
Later, they came back to Nizamabad and took a house on rent near the residence of the victim’s sister and brother-in-law. Then, the accused claimed he would meet his parents to convince them and return. However, he failed to return. Subsequently, he replied to the woman’s phone calls that he doesn’t know her and had denied marrying her.
Under the pretext of a love affair and marriage, he deceived her and exploited her sexually. Realising this, the woman had lodged a police complaint. The police booked him for offences under Section 420 and 493 of the IPC after a thorough investigation and the same was taken cognizance of by the local magistrate’s court.
After hearing the prosecution and the accused, the Magistrate accepted the prosecution’s contention that the offence attracts clause (4) of Section 375 of the IPC by virtue of the so-called consent obtained - by deceiving and misrepresenting. The consent is not a consent in the eyes of the law under Section 90 of the IPC and the offence is punishable under Section 376 of the IPC and not mere Section 420.
Aggrieved with this order, the accused moved the High Court with a plea to set aside the local court’s order. Counsel for the petitioner/accused contended that the order of the Magistrate was an erroneous outcome without proper appreciation of the material on record including the statements of witnesses.
On the other hand, the public prosecutor contended that the Magistrate was right in his observations within the scope of Section 323 of the CrPC and in passing the order and committing the case to the Court of Sessions under Section 209 of the CrPC. Stating that there was nothing to interfere, he urged the court to dismiss the petition of the accused.
After perusing the material on record, Justice Siva Sankara Rao found that as per Section 90 of the IPC, a consent known to be given under fear or misconception is not such a consent as intended by any section. “When such is the case, it not only attracts Section 420 but also Sections 376 and 493 of the IPC. Section 493 says that every man who by deceit causes any woman, who is not lawfully married to him, to believe that she is lawfully married to him and to cohabit or have sexual intercourse with her in that belief, he shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine”, the judge ruled.
“It is clear that it is only after trial as each case depends on own facts, whether the alleged act/acts tantamount to acts of rape are to be decided. When such is the case, the order passed by the Magistrate in no way suffers illegality or impropriety,” he said.
While dismissing the revision petition, the judge further said that the above observations will no way influence the trial court either in considering all the material afresh for framing of charges either separately or alternatively or otherwise, as per the facts or in the ultimate trial of the case for its findings.