SEX BETWEEN A COUPLE BASED ON A GENUINE PROMISE TO MARRY BUT FAILED DUE TO EXTERNAL CIRCUMSTANCES, CAN NOT BE CONSIDERED RAPE - DELHI HC

The Delhi High Court has held that sexual relations formed on the basis of a genuine promise of marriage but later failed to fructify due to some circumstances cannot be considered rape. There is a distinction between a false promise of marriage and a breach of a promise to marry. In the latter, sexual relations are initiated and developed on the premise that the two will marry at a later point in time. But in the false promise of marriage, sexual relations take place without any intention of marrying at all, and consent obtained is vitiated by way of a misconception of fact.

Justice Subramonium Prasad was hearing an appeal by the accused challenging the order passed by the Additional Sessions Judge (ASJ) (Central), Tis Hazari Court, where the ASJ framed the accused of offenses under Section 376(2)(n) of the IPC.

The State informed that the petitioner formed sexual relations on the pretext of a false promise of marriage. The prosecutrix and the petitioner were engaged and the wedding was postponed due to issues in the former's family. However, arguments arose regarding the date of marriage and the prosecutrix's financial condition. Meanwhile, the prosecutrix requested the petitioner to marry her by way of court marriage or in a temple but the petitioner did not agree to the request.

It was alleged the petitioner wanted to marry a girl whose family was well off and would invest money in the marriage.

The petitioner argued that they never were involved in physical relations. The petitioner fell in love with the prosecutrix and therefore Roka ceremony took place. The counsel for the petitioner said that this is just a relationship that ended on bad terms and ASJ failed to apply its judicial mind, mechanically framed charges.

Justice Prasad the promise of marriage was genuine, and if it is failed, due to external circumstances, then the promise cannot be said to be false, and consent as per Section 90 of the IPC is not vitiated. In this case, the parties held Roka which was attended by all the family members. It clearly indicates the petitioner's intention to marry the prosecutrix. 

The HC said that the lower court's order is full of legal infirmities and deserves to be set aside.