MADURAI: The Madras High Court Bench here has moved away from its general practice of denying anticipatory bail to those accused of serious offences such as rape and murder and granted the relief to a youngster in a rape case after taking into consideration a Bombay High Court ruling that an offence of rape would not be made out if an educated woman had had sexual intercourse with a person who promised to marry her.
Justice A.M. Basheer Ahamed granted advance bail to J. Mohammed Asarudeen who was accused by a 22-year-old woman of having had physical relationship with her on several occasions after promising to marry her. However, when he turned a volte face, the victim lodged a complaint before an All Women Police Station here leading to registration of a First Information Report under Sections 417 (cheating), 376 (rape) and 506 (criminal intimidation) of Indian Penal Code.
Appearing on behalf of the petitioner, Senior Counsel Veera Kathiravan relied upon a judgement passed by Justice Mridula Bhatkar of the Bombay High Court on January 9 this year. In that verdict, the judge had held that an educated young woman who had consented to pre-marital sex, after being fully aware of the consequences, could not accuse the partner of rape and the promise allegedly made by him could not be termed as an inducement.
The judge had also held that a consent for sexual intercourse could be said to have been obtained by fraud only if an illiterate woman had been induced to have a physical relationship on a false promise of marriage. “A consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape... Similarly, if consent is obtained by impersonation, then it is playing fraud,” she said.
However, pointing out that the case before her was of a 21-year-old educated woman having had sexual relationship with her lover before their relationship broke, Ms. Justice Bhatkar said: “There may be moral bonding between the two persons when they indulge in sexual activities with a promise to marry and it is also a fact that ultimately women only can become pregnant and therefore they suffer more than the man. However, in law, this cannot be labelled in any manner as rape.”
