Legal Correspondent

“No straitjacket formula for determining whether girl’s consent was voluntary”

NEW DELHI: Sex with the consent of the girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat, the Supreme Court has held.

Consent requires voluntary participation in the sexual act after exercise of intelligence based on knowledge of the significance and moral quality of the act, said a Bench of Justice Arijit Pasayat and Justice D. K. Jain.

The Bench held that there is no straitjacket formula for determining whether consent given by the girl was voluntary or given under a misconception of fact, viz, “promise to marry”.

“While considering the question of consent,” the Bench observed, “the court must 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.”

Writing the judgment, Mr. Justice Pasayat, however, said, “If on the 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 offence.”

In the case before the Bench, Pradeep Kumar of Bihar was said to have made a promise to a girl that he would marry her and had a sexual relationship with her. When he did not eventually marry her, the girl made a criminal complaint and Pradeep Kumar was charged with offences under Sections IPC 376 (rape) and 406 (criminal breach of trust).

The accused filed an application for discharge from the case on the ground that the girl had given her consent for sexual relationship and hence no offence was made out. The trial court rejected his plea and the Patna High Court upheld the trial court’s order. The present appeal before the Supreme Court by Pradeep Kumar was directed against this order.

Disposing of the appeal, the Supreme Court Bench observed, “The court has to see whether the person giving the consent has given it under fear 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.”

Observing that the High Court had not dealt with the case in keeping with the law laid down by the Supreme Court, the Bench set aside the High Court order and remitted the matter back for fresh consideration.