Gujarat High Court
Bhanjibhai Anandbhai Chavda vs State Of Gujarat & on 21 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/15703/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15703 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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BHANJIBHAI ANANDBHAI CHAVDA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRATIK Y JASANI, ADVOCATE for the Applicant(s) No. 1
MR K S CHANDRANI, ADVOCATE for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/02/2017
ORAL JUDGMENT
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HC-NIC Page 1 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT 1 "Heav'n has no Rage, like Love to Hatred turn'd, Nor Hell a Fury, like a Woman Scorn'd" William Congreve.
2 "There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both the man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is the responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is the woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues".
3 Many people today consider marriage solely in terms of biology, sociology or culture. When marriage and family life are viewed in a merely naturalistic manner, they lose all reference to God and are no longer rooted in the absolute values or founded upon divinely ordained truths. One result is that the premarital sex, trial marriage, and cohabitation are a commonplace today. Adultery, divorce, and remarriage are treated casually. "Prenuptial contracts" are becoming a popular way to take out economic insurance against a likely future divorce.
4 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court, praying for quashing of the First Page 2 of 42 HC-NIC Page 2 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT Information Report being M. Case No.2 of 2015 registered with the Gandhigram Police Station, Rajkot for the offence punishable under Sections 376, 406, 420, 467, 468, 471 and 506(2) of the Indian Penal Code.
5 It all started first with a complaint lodged in writing by the respondent No.2 herein addressed to the Police Commissioner, Rajkot dated 25th September 2014. The free English translation of the complaint reads as under:
"(1) I am residing at Rajkot. I am a mother of two children. I got married 18 years back to a resident of Rajkot namely, Arvindbhai Kesur. In the wedlock, two children were born. I developed friendship with one Bhanjibhai Chavda, a resident of Jangleshwar, Rajkot. On account of such friendship, I divorced my husband. After divorce, Bhanjibhai Chavda used to take care of me. Bhanjibhai had promised me that if I would take divorce, then he would take care of me for the rest of my life. He had also promised me that he would buy a house and household articles for me. He has exploited me physically and mentally. I kept on suffering the exploitation with my mouth closed.
Bhanjibhai used to take me out at different places. We have clipped pictures together. I am producing the pictures.
(2) I beg to inform you that Bhanjibhai time and again kept on giving me big allurements. He also allured me by promising to buy a house and gold jewelery. He had given the promise to me in writing and I annex the letter herewith.
(3) There is a land running in the name of the wife of Bhanjibhai. The Page 3 of 42 HC-NIC Page 3 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT land is an agricultural land situated at Kalipat. The land has been alloted by the Government. Bhanjibhai had assured me that he would transfer the land in my name, but since I am not an agriculturist, I could not get the land. He, however, promised me that he would sell the land and the sale proceeds would be paid to me. The documents in this regard are herewith annexed.
(4) Whenever Bhanjibhai Chavda had to report for the 'Bandobast', I used to receive the phone calls at my house from the office of the police department. The writers working in the police department used to come to my house to convey the messages to Bhanjibhai Chavda. Bhanjibhai Chavda used to stay at my house only. He had promised me that the day he retires from service, he would give me 50% of the P.F. and the Gratuity amount. I am in a liveinrelationship with Bhanjibhai past 16 years. Since last one month, Bhanjibhai has stopped talking to me and has severed off all relations. He is not meeting me and has estranged me. He has taken undue advantage of my innocence. As a helpless woman, I am living a very sad life. Bhanjibhai has failed to fulfill his promise given to me. He had also assured me that he would take divorce from his wife and thereafter would officially marry me. We were living life as a husband and wife and today also I consider him as my husband.
(5) Bhanjibhai Chavda also treated me as his wife and we had relations like any other husband and wife. I have 50% share in his retiral benefits.
(6) I have to inform you that Bhanjibhai is serving with the 'A' Division Police Station, Rajkot and is retiring on 30th September Page 4 of 42 HC-NIC Page 4 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT 2014. He should not be paid his retiral benefits like P.F. and Gratuity without a notice to me."
6 After the lodging of the aforesaid complaint addressed to the Commissioner of Police, Rajkot and the Chief Minister of the State, the respondent No.2 thought fit to lodge a private complaint in the Court of the learned Judicial Magistrate First Class, Rajkot, who, in turn, ordered investigation through police under Section 156(3) of the Cr.P.C. In such circumstances, a First Information Report came to be registered as an M. Case No.2 of 2015 for the offence punishable as enumerated above.
7 In the F.I.R., by and large, the allegations are the same as noted above. In addition to what has been stated in the complaint addressed to the Police Commissioner, it has been alleged that on attaining superannuation, the respondent No.2 inquired with the accused about marriage, and at that time, the accused got enraged and told the respondent No.2 that he had given false promise for the purpose of maintaining physical relations. The accused is alleged to have told the first informant that he had many women in his life like the first informant. He also threatened her with life. It is alleged that the accused told the first informant that he had sold the plot which was running in her name. She has alleged that by forging her signature, the plot has been transferred to a third party.
● SUBMISSIONS ON BEHALF OF THE APPLICANT:
8 Mr. Pratik Jasani, the learned counsel appearing for the applicant
submitted that even if the entire case of the first informant is believed or accepted to be true, none of the ingredients to constitute the offence of Page 5 of 42 HC-NIC Page 5 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT rape are spelt out. He submits that the prosecution instituted at the instance of the first informant is nothing, but an abuse of the process of law. He submits that the first informant, on her own free will and volition and with eyes wide open, entered into a relationship, which continued for almost a period of 16 years. After a period of 16 years of the liveinrelationship, the first informant cannot cry foul of being raped or exploited sexually. Mr. Jasani submits that if a married woman divorces her husband and abandons her two children and consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity for a period of 16 years, the same could be termed as an act of promiscuity on her part and not an act induced by misconception of fact. He submits that Section 90 of the Indian Penal Code cannot be called in aid in such a case to pardon the act of the woman and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.
9 Mr. Jasani submits that none of the ingredients to even constitute the offence of cheating are spelt out. He submits that Section 417 of the Indian Penal Code prescribes punishment for the offence of cheating as defined under Section 415 of the Indian Penal Code. It is submitted that there is no material worth the name against his client, from which it can be conclusively inferred that there was any fraudulent or dishonest inducement of the first informant by the accused herein to constitute an offence under Section 415 of the Indian Penal Code. He submits that if it is believed for the time being that the case is one of breach of promise to marry, the same would not even give rise to a claim for civil damages for from being considered as an offence or a crime.
10 Mr. Jasani submits that it is only when the relations got soured
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that the first informant started levelling allegations. The dispute is with regard to the claim over the retiral benefits received by the accused. The first informant was expecting 50% of the amount received by the accused towards his retiral benefits, and as the same was not given by the accused, the same gave rise to the First Information Report.
11 Mr. Jasani submitted that the allegations of forgery are also baseless, as there is nothing to even remotely indicate that the plot of land, the first informant is talking about, has been sold by the accused to a third party by forging her signature. Mr. Jasani submitted that there was no plot of land running in the name of the first informant.
12 In such circumstances referred to above, Mr. Jasani prays that there being merit in this application, the same be allowed and the F.I.R. be quashed.
● SUBMISSIONS ON BEHALF OF THE FIRST INFORMANT:
13 Mr. Chandrani, the learned counsel appearing for the first
informant vehemently submitted that more than a prima facie case is made out on plain reading of the F.I.R. He submits that the matter is at the stage of investigation and the police should be permitted to carry out and complete the investigation in accordance with law. He submits that the picture would be more clear at the end of the investigation. He submits that the expression "under misconception of fact", as contained in Section 90 of the Indian Penal Code, is broad enough to include all cases where the consent is obtained by misrepresentation; misrepresentation should be regarded as leading to a misconception of facts with reference to which the consent is given. Mr. Chandrani submits that at the initial Page 7 of 42 HC-NIC Page 7 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT stage itself, the accused had no intention whatsoever of keeping his promise to marry his client. Only to satisfy his sexual lust, he extended false promises and practiced deceit. Mr. Chandrani submits that but for the purpose of promises held out by the accused, the victim would not have permitted the accused to have sexual intercourse. In such circumstances, according to the learned counsel, the accused could be said to have not only committed the offence of rape, but also of cheating punishable under Section 420 of the Indian Penal Code.
14 Mr. Chandrani, lastly, submitted that the power to interdict a proceeding either at the threshold or at an intermediate stage of the investigation is inherent in a High Court on the broad principle that in case the allegations made in the F.I.R. do not disclose a triable offence, there can be a reason as to why the accused should be made to suffer the agony of a legal proceeding, but such powers are to be sparingly exercised, and that too, without embarking upon an inquiry whether the allegations are true or false or reliable or not.
15 Mr. Chandrani prays that there being no merit in this application, the same be rejected.
16 In support of his submissions, Mr. Chandrani has placed strong reliance on the following decisions of the Supreme Court:
(1) Deepak Gulati vs. State of Haryana [(2013) 7 SCC 675] (2) State of U.P. vs. Naushad [(2013) 16 SCC 651] (3) Yedla Srinivasa Rao vs. State of Andhra Pradesh [(2007) 1 SCC (Cri.) 557] Page 8 of 42 HC-NIC Page 8 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT ● SUBMISSIONS ON BEHALF OF THE STATE:
17 Ms. Thakore, the learned Additional Public Prosecutor appearing for the State, by and large, has adopted the submissions made by Mr. Chandrani, the learned counsel appearing for the first informant. She submits that the first informant was intentionally induced to sexual intercourse on a false promise of marriage. The accused knew that he himself is a married man having two major children and the first informant was also a married lady having two children. Despite such knowledge and being a police officer, he made advances towards the first informant only for the purpose of satisfying his sexual lust, and thereby, caused damage or harm in the body, mind and reputation of the first informant. She submits that the indulgence of the accused in sex with the first informant by means of "intentional inducement" after giving "false promise of marriage" squarely falls within the mischief of the offence of cheating, as defined under Section 415 of the Indian Penal Code, which is punishable under Section 417 of the Indian Penal Code. Ms. Thakore submits that taking a view that persuading a married lady to have physical relations on the false promise of marriage, despite having no intention to marry, will in no case constitute a rape, will amount to putting a premium on a conduct, which is not only highly reprehensible and abhorable, but also criminal in nature. If this is allowed to happen, it will enable immoral and dishonest persons like the accused herein to exploit women or girls belong to the weaker section and lower strata of society by alluring them with the false promise of marriage pressuring them to have physical relations by making them to believe that they are going to marry them and that there was nothing wrong in such relations with a person who is very soon going to be her husband, and later turn their back to her, in a comfortable belief that the law being on their side, they can easily get away with their misdeeds.
Page 9 of 42 HC-NIC Page 9 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT 18 In such circumstances referred to above, the learned A.P.P. prays
that there being no merit in this application, the same be rejected.
19 Having heard the learned counsel appearing for the parties and considered the materials on record, the only question that falls for my consideration is whether the case at hand is one of passive submission in the face of psychological pressure exerted or the allurements made by the accused or was it a conscious decision on the part of the first informant knowing fully the nature and consequence of the act she was asked to indulge in? To put it in other words, whether the tacit consent given by the first informant was the result of a misconception created in her mind as to the intention of the accused to marry her?
20 In the case of Deepak Gulati (supra), the Supreme Court made the following observations, which, in my view, are worth taking note of:
"15. Section 114A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376, IPC have to be taken into consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, and thus, a physical relationship would tantamount to committing rape.
16. This Court considered the issue involved herein at length in the case of Uday V. State of Karnatka, AIR 2003 SC 1639 : (2003 AIR SCW 1035) Deelip Singh alias Dilip Kumar v. State of Bihar, AIR 2005 SC 203 : (2004 AIR SCW6479) YEDLA Srinivasa Rao V. State of A.P. (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar and Anr., AIR 2007 SC 3059 : (2007 AIR SCW 5532), and Page 10 of 42 HC-NIC Page 10 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutirx, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of victim. While a murderer destroys the physical frame of the victim, a rapist degrads and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape the most hated crime, rape tantamounts to a serious blow to the suprme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within a ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accuse; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
19.In Deelip Singh (Supra), it has been observed as under: "20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused.Page 11 of 42
HC-NIC Page 11 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed :
"We are of opinion that the expression under a misconception of fact is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation shouuld be regrded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact the second accused intended to get the girl married??..thus ? If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person. ? Although in cases of contracts a consent obtained by coercion or fraud is only viodable by the party affected by it, the effect of Section 90, IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact, the fact must have an immediate relevance. Section 90, IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the Page 12 of 42 HC-NIC Page 12 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT very beginning, the accused had never really intended to marry her."
21 In Deelip Singh @ Dilip Kumar vs. State of Bihar [(2005) 1 SCC 88], the Supreme Court held as under:
"15.The last question which calls for consideration is whether the accused is guilty of having sexual intercourse with PW12 'without her consent' (vide Clause secondly of Section 375, IPC). Though will and consent often interlace and an act done against the will of a person can be said to be an act done without consent, the Indian Penal Code categorizes these two expressions under separate heads in order to be as comprehensive as possible.
16.What then is the meaning and content of the expression 'without her consent'? Whether the consent given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidentally.
17.The concept and dimensions of 'consent' in the context of Section 375, IPC has been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case.
18.The Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows :
"90. Consent known to be given under fear or misconception A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception......."
19.Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
20.The factors set out in the first part of Section 90 are from the point of Page 13 of 42 HC-NIC Page 13 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
21.Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent'.
22. In most of the decisions in which the meaning of the expression 'consent' under the Indian Penal Code was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases Permanent Edition and other legal Dictionaries. Stroud defines consent as 'an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." Jowitt, while employing the same language added the following :
".......Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind."
23. In Words and Phrases Permanent Edition, Volume 8A, the following passages culled out from certain old decisions of the American Courts are found :
"......... adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent."
24.It was observed by B.P. Singh, J. speaking for the Court in Uday v.
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State of Karnataka (SCC p.53, para 12)
12. the Courts in India have, by and large, adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent."
25.There is a good analysis of the expression 'consent' in the context of Section 375, IPC by Tekchand, J., in Rao Harnarain Singh Sheoji Singh v. State. The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge that (AIR p.126, para 7) that "there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent", is quite apposite. The said proposition is virtually a repetition of what was said by Coleridge, J. in Regina v. Day in 1841 as quoted in Words and Phrases (Permanent Edition) at page 205. The following remarks in Harnarain's case are also pertinent (AIR p.126, para 7) :
"Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non resistance and passive giving in cannot be deemed to be Consent."
26.The passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decisions :
Vide In Re: Anthony (AIR 1960 Madras 308); Gopi Shankar v. State (AIR 1967 Raj 159); Bhimrao v. State of Maharashtra (1975) Mah LJ 660); Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234). All these decisions have been considered in a recent pronouncement of this Court in Uday v. State of Karnataka. The enunciation of law on the meaning and content of the expression 'consent' in the context of penal law as elucidated by Tekchand, J. in Harnarain's case (which in turn was based on the above extracts from Law Dictionaries) has found its echo in the threeJudge Bench decision of this Court in State of H.P. v. Mango Ram (2000) 7 SCC 224), K.G. Balakrishnan, J. speaking for the Court stated thus (SCC pp. 23031, para 13):
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
On the facts, it was held that there was resistance by the prosecutrix and Page 15 of 42 HC-NIC Page 15 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT there was no voluntary participation in the sexual act. That case would, therefore, fall more appropriately within Clause first of Section 375.
27.We shall turn our attention to the cases which dealt with the specific phraseology of Section 90, IPC. We have an illuminating decision of the Madras High Court rendered in 1913 in Re: N. Jaladu (ILR 36 Madras
453) in which a Division Bench of that Court considered the scope and amplitude of the expression 'misconception of fact' occurring in Section 90 in the context of the offence of kidnapping under Section 361, IPC. The 2nd accused in that case obtained the consent of the girl's guardian by falsely representing that the object of taking her was for participating in a festival. However, after the festival was over, the 2nd accused took her to a temple in another village and married her to the 1st accused against her will. The question arose whether the guardian gave consent under a misconception of fact. While holding that there was no consent, Sundara Ayyar, J. speaking for the Bench observed thus (ILR pp. 45657):
"We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act illustration (d) that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. In considering a similar statute, it was held in England in R. v. Hopkins 1842, Car and M 17, 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. See also Halsbury's Laws of England, Volume 9, page 623. In Stephen's Digest of the Criminal Law of England (sixth edition, page 217), the learned author says with reference to the law relating to "abduction of girls under sixteen" "thus.....If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person."........... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90, IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
This decision is an authority for the proposition that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact. This view of the Madras High Court was accepted by a Division Bench of Bombay High Court in Purshottam Mahadev v. State of Bombay (AIR 1963 Bombay 74). Applying that principle to a case arising under Section 375, consent given Page 16 of 42 HC-NIC Page 16 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact.
28.On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375, IPC, we have the decision of Division Bench of Calcutta High Court in Jayanti Rani Panda v. State of West Bengal (1984 Cri LJ 1535). The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7 : (Cri LJ pp. 153738) "Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is.............. why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged."
The discussion that follows the above passage is important and is extracted hereunder : (Cri LJ p. 1538, para 7) "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other,unless the Court can be assured that Page 17 of 42 HC-NIC Page 17 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT from the very inception the accused never really intended to marry her." (Emphasis supplied) The learned Judges referred to the decision of Chancery Court in Edgomgtpm v. Fotz,airoce (1885) 29 Ch D 459, and observed thus : (Cri LJ p. 1538, para 8) "This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect : "There must be a misstatement of an existing fact." Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Sec. 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact."
After referring to the case law on the subject, it was observed in Uday (supra) at paragraph 21 :(SCC pp. 5657) "21. It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
29.The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the Page 18 of 42 HC-NIC Page 18 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, Clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda, (supra) which was approvingly referred to in Uday's case (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end "unless the Court can be assured that from the very inception, the accused never really intended to marry her".In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu's case, (supra) (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact.Reading the judgment in Uday's case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out."
22 The Supreme Court in the case of Kaini Rajan vs. State of Kerala [(2013) 9 SCC 113] observed as under:
"12. Section 375 IPC defines the expression rape, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression against her will means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent IS ALSO STATED TO BE AN ACT OF REASON COUPLED WITH DELIBERATION. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 Page 19 of 42 HC-NIC Page 19 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT IPC referes to the expression consent. Section 90, though, does not define consent, but describes what is not consent. Consent, for the purpose of Section 375, requires voluntary participation not only after the exercise of intellignece based on the knowledge of the significance andmoral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See state of H.P. v. Mango Ram.)
14.This Court examined the scope of Section 375 IPC in a case where the facts have some resemblance with the one in hand. Reference may be made to the judgment of this Court in Deelip Singh V. State of Bihar. In that case, this Court examined the meaning and content of the expression without her consent in Section 375 IPC as well as whether the consent given by a woman believing the man's promise to marry her, is a consent which excludes the offence of rape. This Court endorsed the principle that a misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact. While applying this principle to a case arising under Section 375 IPC, this Court held that the consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to ,misconception of fact within the meaning of Section 90 IPC. This Court further held that: (SCC p. 104, para 28) ".....If on facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of the second clause of Section 375 IPC."
In the facts of that case, this Court held, that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. The Court held that she came to the decision to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Court noticed that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act.
15.In Ramdas v. State of Maharashtra this Court held that : (SCC p.179, para 23) "23.....the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where Page 20 of 42 HC-NIC Page 20 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity."
16.Vijayan v. State of Kerala was a case where the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. This Court did not place reliance on the sole testimony of the prosecutrix. The Court noticed that flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child.
17. K.P. Thimmappa Gowda V. State of Karnatka was a case where the accused had assured the prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that the alleged sexual act was committed without the consent of the prosecutrix."
23 In State of U.P. (supra), the Supreme Court observed as under:
"10. We will answer point Nos. 1 and 2 together as they are related to each other. Section 376 of IPC prescribes the punishment for the offence of rape. Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the offence. The description "secondly" speaks of rape "without her consent". Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix 'against her consent'. The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of 'bad character'.
How is 'consent' defined? Section 90 of the IPC defines consent known to be given under 'fear or misconception' which reads as under: "90. Consent known to be given under fear or misconception A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception ; xxxx"Page 21 of 42
HC-NIC Page 21 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivas Rao v. State of A.P.2, with reference to similar facts, this Court in para 10 held as under: "10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs. 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."
Further, in para 17 of the said judgment, this Court held that: "In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW1 as well as PW6 who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and Page 22 of 42 HC-NIC Page 22 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her."
Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.
11. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accusedrespondent guilty of the offence of rape as defined under Section 375 of the IPC.
12. The answer to point No.3 is pertaining to the question of sentence awarded by the trial court to the accused. The trial court has justified in awarding of maximum sentence of life imprisonment to the accused under Section 376 of the IPC on the ground that the facts of this case are of a very grave nature. The accused being related to the prosecution used to often visit her house and took undue advantage of this relationship and kept the prosecutrix under the misconception that he would marry her and committed rape on her for more than two years thereby making her pregnant. In such circumstances, the trial court held that it would be justifiable to award the maximum sentence to the accused. We, therefore, hold that the trial court was correct in awarding the maximum sentence of life imprisonment to the accused as he has committed a breach of the trust that the prosecutrix had in him, especially due to the fact that they were related to each other. He thus invaded her person, by indulging in sexual intercourse with her, in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her."
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24 In Yedla Srinivasa Rao (supra), the Supreme Court observed as under:
"9 The question in the present case is whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 of IPC as mentioned above. It is clear that the prsoecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Indian Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be valid consent. Section 90 reads as under:
"Section 90 Consent known to be given under fear or misconception. A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
10 It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the Page 24 of 42 HC-NIC Page 24 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. In this connection, reference may be made to a decision of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal & Anr. (1984) Cri.L.J.1535. In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed that if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact and it was held that Section 90 IPC cannot be invoked unless the court can be assured that from the inception accused never intended to marry her. Therefore, it depends on case to case that what is the evidence led in the matter. If it is fully grown up girl who gave the consent then it is different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked. Therefore, so far as Jayanti Rani Panda (supra) is concerned, the porseuctirx was aged 2122 years old. But, here in the present case the age of the girl was very tender between 1516 years. Therefore, Jayanti Rani Panda's case is fully distinguishable on facts. It is always matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that he would marry her then in that case it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence. Reliance can also be made in the case of Emperor v. Mussammat Soma reported in (1917) Crl. Law Journal Reports 18 (Vol.18). In that case the question of consent arose in the context of an allegation of kidnapping of a minor girl. It was held that the intention of the accused was to marry the girl to one Dayaram and she obtained Kujan's consent to take away the girl by misrepresenting her intention. In that context it was held that at the time of taking away the girl there was a positive misrepresentation i.e. taking the girls to the temple at Jawala Mukhi and thereafter they halted for the night in Kutiya (hut) some three miles distance from Pragpur and met Daya Ram, Bhag Mal and Musammat Mansa and Musammat Sarasti was forced into marrying Daya Ram. This act was found to be act of kidnapping without consent. But, in the instant case, a girl though aged 16 years was persuaded to sexual intercourse with the assurance of marriage which the accused never intended to fulfil and it was totally under misconception on the part of the victim that the accused is likely to marry her, therefore, she submitted to the lust of the accused. Such fraudulent consent cannot be said to be a consent so as to condone Page 25 of 42 HC-NIC Page 25 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT the offence of the accused. Our attention was also invited to the decision of this Court in the case of Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88 wherein this Court took the view that prosecturix had taken a conscious decision to participate in the sexual act only on being impressed by the accused who promised to marry her. But accused's promise was not false from its inception with the intention to seduce her to sexual act. Therefore, this case is fully distinguished from the facts as this Court found that the accused promise was not false from its inception. But in the present case we found that first accused committed rape on victim against her will and consent but subsequently, he held out a hope of marrying her and continued to satisfy his lust. Therefore, it is apparent in this case that the accused had no intention to marry and it became further evident when Panchayat was convened and he admitted that he had committed sexual intercourse with the victim and also assured her to marry within 2 days but did not turn up to fulfil his promise before the Panchayat. This conduct of the accused stands out to hold him guilty. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but prosecutrix was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what the consequences may result for indulging into such acts and when the accused promised to marry but he never intended to marry right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 "without her consent". A consent obtained by misconception while playing a fraud is not a consent."
"15 In this connection reference may be made to the amendment made in the Indian Evidence Act. Section 114 A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114A reads as under:
"Section 114 A Presumption as to the absence of consent in certain prosecutions for rape. In a prosecution for rape under Cl. (a) or Cl.(b) or Cl.(c) or Cl. (d) or Cl. (e) or Cl. (g) of sub section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the Court shall presume that she did not consent."Page 26 of 42
HC-NIC Page 26 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT 25 Section 90 of the IPC, which deals with consent, reads as follows : "Consent known to be given under fear or misconception. A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconnection of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person, if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of childunless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
26 In Black's Law Dictionary, the word 'Consent' has been defined as follows : "Consentn. Agreement, approval, or permission as to some act or purpose, esp, given voluntarily by a competent person. Consent is an affirmative defence to assault, battery, and related torts, as well as such torts as defamation, invasion of privacy conversion, and trespassconsent, vb. consensual, adj."
27 In the case of Rao Hamarain Singh Sheoji Singh vs. State, reported in AIR 1958 Punjab 123, explaining as to what the word 'consent' in criminal law conveys, observed as follows : "A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent.
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There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure."
28 In the case of Jayanti Rani Panda v. State of W.B., reported in 1984 Cri. L.J. 1535, the Calcutta High Court concluded as follows (para
7):
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never intended to marry her."
29 In the case of State of H. P. vs. Mango Ram, reported in (2000) 7 SCC 224 : (2000 Cri LJ 4027, para 12), the Supreme Court held as follows :
"The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."Page 28 of 42
HC-NIC Page 28 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT 30 The Indian Penal Code does not define "consent" in positive terms. There is, however, a negative definition of the word "consent" in Section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as "consent" under the Indian Penal Code. The relevant provisions of Section 90, IPC reads as follows : "90. Consent known to be given under fear or misconception. A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.........."
31 From a close reading of Section 90 of the Indian Penal Code, which explains as to what cannot be regarded as consent for the purpose of the Indian Penal Code, it becomes clear that consent given under fear of injury, or under a misconception of fact, is not a consent at all. It is, however, worth noticing that giving of consent under the fear of injury or misconception of fact is not sufficient to hold that no consent existed unless it is further established that the wrongdoer knew, or had reason to believe, that the consent given was in consequence of such fear or misconception. The factors, set out in the first part of Section 90, namely, that the consent given by a person under the fear of injury or under misconception of fact is not consent are from the point of view of the victim, whereas the factors, set out in the second part of Section 90, namely, that the person doing the act knows, or has reason to believe, that consent was given in consequence of such fear or misconception are corresponding provisions from the point of view of the accused. Thus, the second part of Section 90 lays emphasis on the knowledge or reasonable belief of the person, who obtains consent, that the consent Page 29 of 42 HC-NIC Page 29 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT given by the victim is in consequence of fear of injury or misconception of fact. What is, however, of paramount importance to note is that the existence of the twin requirements of Section 90 must be cumulatively satisfied in order to enable a Court to hold that no consent in law existed at the relevant time. In other words, when these two conditions precedent are coexistent in a case, it can be safely held that no consent, as envisaged under the Indian Penal Code, existed. Such a finding can be reached by examining as to whether the person, giving consent, had given the same under fear of injury or misconception of fact and, further, whether the offender knew, or had reason to believe, that but for fear or misconception, consent would not have been given. These aspects of the word "consent", as envisaged under the Indian Penal Code, have been succinctly described in Deelip Singh (supra).
32 In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear cannot be construed as consented sexual act for the purpose of Section 375 of the Indian Penal Code, for, Section 375 of the Indian Penal Code requires voluntary participation by the victim not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistance and assent. Whether consent existed or not has to be ascertained on the basis of the facts of a given case. (See Mangoram (2000 Cri. L.J. 4027) (supra).
33 However subtle may be, there is, indeed, a firm and fine distinction between consent and submission. Every consent involves a submission, but every submission is not consent and the mere fact that a woman had submitted to the promise of the accused does not necessarily indicate that her consent existed unless the evidence on record Page 30 of 42 HC-NIC Page 30 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT establishes that the sexual act, which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one's will or pleasure.
34 It is also of immense importance to note that though a cursory reading or hurried look into the decision of Uday vs. State of Karnataka ((2003) 4 SCC 46 : 2003 Cri LJ 1539) reflects as if the Supreme Court has held that consent given by a prosecutrix to sexual intercourse with a person with whom she is deeply in love, on the basis of a promise made by such a person that he would marry her on a latter day, can never be said to have been given under a misconception of fact, a careful and cautious reading of the Supreme Court's latter decision, in Deelip Singh (supra), which, if I may point out, has considered and explained the decision rendered in Uday (supra), shows that while a promise to marry without anything more will not give rise to a misconception of fact within the meaning of Section 90, a representation deliberately made by the accused with a view to obtaining assent of the victim without having intended to marry her will vitiate the consent. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry the victim and the promise to marry held out by him was a mere hoax, consent ostensibly given by the victim will not exculpate the accused from the ambit of Section 375 of the Indian Penal Code.
35 Explaining as to what the decision in Uday (supra) conveys, or should be read as, the Supreme Court, in Deelip Singh (supra), has pointed out that in Uday (supra), the Court was cautious enough to add that no straightjacket formula can be evolved for determining whether the consent was given under a misconception of fact and, in the ultimate Page 31 of 42 HC-NIC Page 31 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT analysis, it is on the basis of the facts of each case, as may be discernible from the evidence on record and the surrounding circumstances, that the Court has to decide the question as to whether the consent given was voluntary or was under a misconception of fact.
36 The Supreme Court has also emphasized, in Deelip Singh (supra), that for the purpose of determining as to whether consent existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether consent existed or not, the Court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the Court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain consent or was it an honestly made promise of marriage. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him.
37 Referring to its observations, made in the case of Uday (supra), that it is the prosecution's burden to prove presence of a valid consent in order to attract the ingredients of the offence of rape, the Apex Court, in Deelip Singh (supra), has clarified that while reading its said observations made in Uday (supra), the Courts must remember that this preposition would not apply if a case is covered by the provisions of Section 114A of the Evidence Act, which I may notice, lays down that in a prosecution for rape under subsection (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the Page 32 of 42 HC-NIC Page 32 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
38 What transpires from the above observations made in Deelip Singh (supra) is that in a prosecution under Section 376(2) of the Indian Penal Code, when sexual intercourse by the accused with the prosecutrix is proved to have taken place and the prosecutrix, in such a case, claims, in her evidence before the Court, that she had not consented to the sexual act, the Court shall draw a presumption that she had not consented to the sexual act and the burden would, then, shift to the accused to prove that his sexual act with the prosecutrix was with her consent. The burden on the accused to discharge such presumption would, however, not be as heavy as on the prosecution if the prosecution, in a given case, is required to prove that the consent did not exist.
39 It may, however, be borne in mind that even if a prosecutrix had consented believing in the words of the accused that the promise for marriage made to her by the accused is honest and genuine, this will not be sufficient to hold that no consent existed for the purpose of Section 90 of the Indian Penal Code unless it is further established that the accused, at the time, when he had made the promise, did not have the intention of keeping to his promise. In a given case, thus, even a strong probability, if revealed from the materials on record, that the accused intended to marry the prosecutrix at the time, when he had made the promise for marriage, may absolve the accused, for, in such a case, it cannot be said that the consent was given under a misconception of fact and that the accused knew, or had reason to believe, that the consent given has under such misconception of fact.
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40 Conversely, if a woman, believing in the promise of marriage
made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the Court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent given by the woman would not, in the light of the provisions of Section 90 of the Indian Penal Code, amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. What is imperative to bear in mind, in such cases, is that killing of a man is, ordinarily, conceived as murder by a common man; but in law, every killing does not amount to murder. Similarly, the word 'consent', as is understood in common parlance, may not be, for the purpose of the Indian Penal Code, consent at all.
41 As regards the applicability of Sections 415 and 417 of the Indian Penal Code, I may have a look at the provisions of Sections 415 and 417:
"Section 415. Cheating . Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
"Section 417. Punishment for cheating. Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both."
42 In the case of Devender Kumar Singla v. Baldev Krishan Singla, reported in (2005) 9 SCC 15 : (2004 Cri. L.J. 1774), the essential Page 34 of 42 HC-NIC Page 34 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT ingredients to attract Section 415 of the Indian Penal Code were enumerated as below :
"Section 415 defines "cheating". The said provision requires : (1) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely, to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which such a transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are : (i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable property, and (iii) the means rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai v. State of Bombay (1960 Cri LJ 1383)).
As was observed by this Court in Shivanarayan Kabra v. State of Madras (1967 Cri LJ 946) it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circumstances from which a reasonable inference can be drawn."
43 From the period of enactment of the Indian Penal Code, chastity of woman was regarded as her greatest virtue and asset. Those were the days of chastity and even the monarchs in England were reluctant to marry a woman without chastity. Chastity may not have money value in the hands of the person cheated, but it definitely has its reputation value. Moreover, under the definition of cheating under Section 415 of Indian Penal Code, any act or omission, which may arise or likely to Page 35 of 42 HC-NIC Page 35 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT cause damage or harm to the person so deceived, has also been included. The expression 'harm' has not been defined in the I.P.C. In the case of Mrs. Veeda Menezes v. Yusuf Khan, reported in AIR 1966 SC 1773 : (1966 Cri. L.J. 1489), the Supreme Court observed as follows : "The expression "harm" has not been defined in the Indian Penal Code : in its dictionary meaning it connotes hurt; injury, damage, impairment; moral wrong or evil. There is no warrant for the contention raised that the expression "harm" in S. 95 does not include physical injury. The expression "harm" is used in many sections of the Indian Penal Code. In Ss. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury. In S. 93 it means an injurious mental reaction. In S. 415 it means injury to a person in body, mind, reputation or property. In Ss. 469 and 499 'harm', it is plain from the context, is to be reputation of the aggrieved party. There is nothing in S. 95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word. Section 95 is a general exception, and if that expression has in many other sections dealing with general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression "harm" in S. 95 in a restricted sense."
44 In the case of Ramautar Choukhany vs. Hari Ram Jodi, reported in 1982 Cri. L.J. 2266, it is held that mere failure to fulfill the promise may not constitute the offence of cheating. However, there may be cases, where there was dishonest intention at the very inception, which can be inferred under the facts and circumstances of the case. There may be cases, where a person, already married, dishonestly induces another woman to have sexual intercourse with him on the assurance that he is going to marry her, although at the time of making the above promise, the person knew fully well that he is not going to honour his words and the promise has been made solely for the purpose of enjoying the body of the prosecutrix.
45 When an accused makes a false promise to marry, which he never
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intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417 of the Indian Penal Code if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused. To put it differently had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation.
46 As the definition of the offence of cheating indicates, as already pointed out above, that even when no parting of property is occasioned by deception, the deception may still amount to cheating if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of cheating if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual Page 37 of 42 HC-NIC Page 37 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT intercourse by such a man with her causes or is likely to cause damage or harm to the person of such a woman, her mind or reputation.
47 Let me go back to the allegations levelled by the first informant. The contents of the application in the form of a complaint addressed to the Police Commissioner, Rajkot dated 25th September 2014 bears an eloquent testimony to the fact that it was a conscious decision on the part of the first informant to enter into a relationship with the accused herewith on account of the intimacy developed by her for the accused. A married lady having two children went to the extent of divorcing her husband so that she can settle with the accused herein. She knew very well from day one that the accused is also a married man having two major children, a son and a daughter, however, it appears that the first informant got enamoured by the tag of the accused herein being an A.S.I. and the greed to have immovable property and gold. The relationship continued for 16 years without any hindrance or problem. Not once in 16 years, she thought fit to remind the accused of his promise to marry her and give her the status of being a lawful wife. The problems cropped up no sooner the accused herein attained superannuation. The abrupt severance of the relationship gave a big jolt to the first informant and a sense of insecurity. In such circumstances, she putforward the claim of 50% share in the retiral benefits, which the accused herein might have received.
48 I am of the view that the case at hand is not one of passive submission on the part of the first informant in the face of any psychological pressure exerted or allurements made by the accused. It was a conscious decision on the part of the first informant knowing fully the nature and consequence of the act she was asked to indulge in or she Page 38 of 42 HC-NIC Page 38 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT on her own thought fit to indulge in. I find it extremely difficult in the facts of the case to take the view that the first informant entered into a relationship with the accused on account of the result of a misconception created in her mind as to the intention of the accused to marry her. If a married woman, a mother of two children, goes to the extent of divorcing her husband on account of the intimacy developed by her towards the accused, consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity for a period of 16 years, then it is an act of promiscuity on her part and not an act induced by misconception of fact. I am of the view that Section 90 of the Indian Penal Code cannot be called in aid in such a case to pardon the act of the woman and fasten the criminal liability on the other. It is true that but for the initiative taken by the accused herein, probably, things would not have been gone to this extent. The act on the part of the accused is also extremely shameful being a married man and a father of two major children. He is a blot and a complete disgrace for the police department. However, the question is whether he could be said to have committed the offence of rape punishable under Section 376 of the Indian Penal Code. The answer, unfortunately, has to be in the negative.
49 The second question is whether the accused has committed the offence of cheating punishable under Section 417 of the Indian Penal Code.
50 For the reasons and the discussion of law referred to above, I am of the view that a prima facie case is made out of cheating and for this purpose, the investigation should be permitted to be completed in accordance with law. There are allegations of fraudulent transfer of a land which was running in the name of the first informant. The allegations are that the accused herein forged the signature of the first Page 39 of 42 HC-NIC Page 39 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT informant and has sold the land to a third party. This allegation also needs to be investigated in accordance with law.
51 I am not impressed by the submission of Mr. Jasani that in a case of extramarital affairs or liveinrelationship where a man promises to a married woman and even has a physical relationship with her and even subsequently the marriage does not come through, it cannot be said that an offence under Section 417 of the Indian Penal Code is made out. I am also not impressed by the submission that in such a case, the liability could only be under civil law for damages as held by the Supreme Court in the case of Dilip Singh (supra). It is true that mere failure to fulfill a promise on a subsequent date on account of various factors or circumstances do not amount to an account of cheating, but, in what circumstances, the accused could not fulfill his promise and continued to have an extramarital affair with the first informant for 16 years without getting married to her, is a question of fact, which can be decided only by the Trial Court on the basis of the evidence that may be led by the parties. If the first informant deems fit and so advised, she can initiate appropriate proceedings before the appropriate forum even for award of compensation.
52 It can be argued that if a woman lives in illicit cohabitation with a man and thereafter comes out with a case of damages, such claim would not be countenanced by any Court of Law and justice, and therefore, the Court should refuse any compensation. Although this issue is not relevant for the purpose of deciding this application, but having regard to the peculiar facts of the case and the conduct of the accused, I am inclined to say something.
53 Mr. Jasani invited my attention to a decision of the Supreme Court
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in the case of Kherulal Parekh vs. Mahadeodas Maiya and others [AIR 1959 SC 781], wherein the Supreme Court observed as follows:
"The primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on public policy; the doctrine of public policy is extended not only to harmful cases but also to harmful tendencies."
54 Mr. Jasani would submit that if the Court was to award damages in this type of mattes, it would be harmful and it would encourage harmful tendency and it would be against public policies.
55 In the case of Manicka Gounder vs. Muniammal, [AIR 1968 Madras 392], which is strongly relied upon by the applicant, it is observed as under : "Where due consideration relates strictly to past cohabitation, which is illicit, in the sense that it is outside matrimony, but which otherwise does not constitute any offence, it would be conceivably held, on the circumstances, that the promise to pay is supported by good consideration. But even so, though this consideration is not forbidden by any law, nevertheless it falls under the interdict that it may be 'immoral or opposed to public policy'. For the Courts must, by every means in their power, promote matrimony, and the incurring of lawful sexual relationship alone and ought not to give sanction or approval, even in an implied form, to irregular sexual relations outside the bond of matrimony, even where they may constitute no offence of infringement of the Penal law."
56 A Division Bench of this Court in the case of Prema Kargaokar vs. Mustak Ahmad [First Appeal No.947 of 1985 decided on 3rd October 1986] has taken the view that the damages are not claimed on the basis of illicit cohabitation or for any immoral consideration. It is only a side effect or a byproduct and the cause of action is not based on such Page 41 of 42 HC-NIC Page 41 of 42 Created On Sun Aug 13 20:53:23 IST 2017 R/CR.MA/15703/2015 JUDGMENT cohabitation. The case is based on the promise of marriage and breach of such promise. If the person is able to prove that a clear actionable wrong is proved, for which claim for damages or compensation is maintainable, then merely because the parties had illicit cohabitation would not make the legal and valid cause of action illegal and immoral. It is wellsettled that breach of promise to marry is actionable and damages and compensation for such breach can be awarded.
57 In the result, this application is partly allowed. The First Information Report, so far as the offence of rape is concerned, is hereby quashed. So far as the other offences are concerned, it shall be open for the police to complete the investigation in accordance with law and file an appropriate report before the Court concerned. Rule is made absolute to the aforesaid extent. The adinterim relief granted earlier stands vacated with a direction to the Investigating Agency to commence the investigation and complete the same in accordance with law. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 42 of 42 HC-NIC Page 42 of 42 Created On Sun Aug 13 20:53:23 IST 2017