Bombay High Court: In a revision application challenging the order passed by Additional Sessions Judge on 1-3-2019 rejecting application for discharge of applicant on the ground that the present case is not one of consensual sexual intercourse as the prosecutrix’s complaint mentions some events of forcible act, Bharati Dangre, J. discharged the applicant and observed that it cannot be inferred that the physical relationship established on every occasion was against her will or without consent.
The prosecutrix and applicant were in a relationship for almost 8 years and the applicant had promised to marry her. The families of both prosecutrix and applicant had knowledge of their love affair and were on visiting terms with each other while agreeing for solemnization of marriage. It is alleged by the prosecutrix that he used to commit intercourse on the promise of marriage whenever she used to visit him, by consent or even forcibly. It is further alleged that the prosecutrix permitted physical relationship with the applicant on assurance of marriage, which was eventually refused when brought before the applicant. He even forwarded some obscene messages and the relationship between them was severed. There are further allegations of physical assault and mental abuse. Offences under Sections 376 and 323 of Penal Code, 1860 (‘IPC’) and Section 67 of Information Technology Act, 2000 (‘IT Act’) were invoked and a chargesheet has been filed.
The Court observed that the prosecutrix was major during her relationship with the applicant when she could understand the consequences of her act wherein, the relationship was consensual but sometimes forcible as per allegations. It further pointed out that promise to marry was not the only reason of prosecutrix permitting applicant for sexual indulgence since she accepted her love affair with the applicant. The Court noted that “repeated sexual indulgence was out of the love affair, and it was not necessarily preceded by the promise of marriage on every occasion.”
The Court referred to Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 wherein, the Court drew a “distinction between false promise to marry and not fulfilling a promise to marry.” for examining whether the false promise of marriage was made at an early stage. The Court analysed definition of rape under Section 375 and consent under Section 90 of IPC.
The Court observed that the relationship between prosecutrix and applicant continued for 8 long years, which cannot be said that she consented because she was under misconception of promise of marriage. Now that the relationship turned sour, it cannot be inferred that the physical relationship established on every occasion was against her will or without consent. The Court did not find the existence of sufficient ground to proceed against the applicant with charges of Section 376 of IPC.
Regarding offence under Section 323 of IPC, the Court pointed that vague allegation of assault has been made without any details. The Court commented that refusal to discharge accused merely with an observation that intercourse was forcible at some time, by exercising power available to the Court cannot be said to be justified exercise. The Court further said that “when two matured persons come together and invest in a relationship, one cannot be blamed only because the other complained of the act at some point of time when the relationship did not go well and could not ultimately culminate into a marriage.”
The Court thus allowed the revision application by discharging the applicant and order dated 1-3-2019 could not be sustained.
[X v. State of Maharashtra, 2023 SCC OnLine Bom 765, judgment dated 29-3-2023]
Judgment authored by: Justice Bharati Dangre
Advocates who appeared in this case :
For Applicant: Senior Advocate Girish Kulkarni;
For State: Additional Public Prosecutor P.N. Dabholkar.