A man accused of rape can be convicted only if he has a bad faith intent not to fulfill the promise to marry the victim, the Supreme Court said Monday, describing the crime as an assault on the “body and intimacy of the victims “.
“The defendant may be convicted of rape only if the court concludes that the intention of the accused was bad faith and had no reason clandestine” said an apex court bench of Justice BS Chauhan and Justice Dipak Misra.
The court said that setting this aside, while a January 28, 2010, order of the High Court of Punjab and Haryana, in relation to a conviction of rape of Karnal in Haryana, who had eloped to marry against the wishes of family members.
“There is a difference between mere breach of promise, and a promise not false,” the court said.
“There is a clear distinction between rape and consensual sex in a case like this, the court should carefully consider whether the defendant actually had wanted to marry the victim, or had reason bad faith, and that he had made a false promise this effect only to satisfy his lust, as it falls within the scope of the fraud or deceit, “the court said.
“Therefore, the court must examine whether it was, in a first stage, a false promise of marriage by the accused and if consent is given after participating fully understanding the nature and consequences of sexual indulgence” , said the judges of the apex court.
The Supreme Court upheld the November 13, 1998, the order of Additional Sessions Judge, Karnal, convincing Deepak Gulati for kidnapping and raping a woman he supposedly loved and wanted to marry.
Gulati was awarded three years in prison for kidnapping and seven-year duration of the commission of the violation and the two sentences were to be served at the same time.
Upon entering the sequence of events leading to the alleged violation and then stopping Gulati, the Supreme Court said that in each stage of the prosecutrix acted on their own volition.
Gulati was arrested when he and the woman came to a bus stop at Kurukshetra, Ambala to go for the two could get married in a court there.
“In conclusion, the prosecutrix had left home voluntarily, willingly to marry the appellant. She was 19 years old at the relevant time and was, therefore, able to understand the complications and problems related to their marriage to the appellant, “the court said.
“Consent may be express or implied, coercion, or wrong, or willingly obtained by deception. Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance, good and evil on each side, “said the court.
“There may be a case where the prosecutrix agrees to have sex because of their love and passion for the defendant, and not just because of the poor representation made by the defendant, or when a defendant by reason of the circumstances could not have foreseen, or which were beyond his control, he could not marry her, despite having every intention of doing so, “the court said.
These cases “should be treated differently,” the court said.
“The defendant may be convicted of rape only if the court concludes that the intention of the accused was bad faith and had no reason clandestine”.
The court said that Article 90 of the Indian Penal Code (consent given under fear or error) can not be invoked in these cases, “to forgive the act of a girl in full, and to set criminal liability for the other , unless the court said that from the outset, the defendant never intended to marry her. “