As HC already complained of rape by a married woman, a look at the consent and its various forms in the law

New Delhi: The Madhya Pradesh High Court has ruled that a married woman cannot claim consent for sex with another man, while a rape complaint was taken under false marriage promise.

In his decision of 10 February, Justice Maninder S. A bench of Bhatti said, “.. This court along with Apex court also states that when the prosecution is a married woman, and therefore, she agrees to physical relations due to false promises. Marriage cannot be brought within the structure of consent obtained on the basis of ‘misconception of fact’ (SIC). ,

Many times, the Supreme Court and High Courts across the country have moved to read a convenor of IPC sections 375 and 90 that it is rape if a man has sexual intercourse with a woman without his consent.

Law on consent, rape and ‘false promise of marriage’

IPC Section 90 states that “consent” will not be considered valid if a person is given by a person “from fear of injury” or “under the misconception of fact”. Similarly, Section 28 of the Indian Justice Code says, “A consensus is not such a consensus, as is done by any section of this code, if a person is afraid of injury, or the misconception of the fact Under the consensus is given, and if the acting person knows, or the reason for believing, was given as a result of such fear or misunderstanding. ,

Under the provisions, the consent given by a person under the age of 12, an unheard of the mind, or drunk will also be done. The argument behind the inclusion of categories is that if a person agrees without understanding the results or nature of the act, on which one is giving consent, it is considered a “no consent” in the eyes of the law.

The crime of rape is defined under the IPC Section 375, which means that a woman having sex means rape, either against her will or without her consent, among other categories. Even if there is consensus, such acts will be raped if the person agrees with fear of death or fear of injury.

Similarly, if a man knows that she is not a husband, and the woman gives her consent, she believes that she is the man she has married or she believes to marry herself, or when she is intoxicated Is in, or is the unheard mind at that time. Her consent, consent will not be considered valid.

Section 375 also defines consent as “uneven voluntary agreement, when the woman, through any form of her words, gestures or oral or non-oral communication, infuses the desire to participate in the specific sexual act, “. It specifies that a woman who does not oppose the functioning of physical entry will not be there – because of that fact – is considered as consent for sexual activity.

In The Kanvikt vs State of Tripura (2019), a bench of Tripura High Court of Justice Sanjay Karol ruled, “Corolri-which could be quite less on reading a convenor of east-elected classes-is that the crime of rape It is believed that if a man has sexual intercourse with a woman without his consent, then a consensus received under the misconception of the fact. There will be no amount for consent.

Since Section 90 IPC states that there will be no amount for consensus obtained under “misconception of facts”, in many rulings, Supreme Court, such as Kenny Ranjan vs, in Kerala’s decisions of 2013 and Anurag Soni vs 2019 decisions Such as its 2013 decision. The state of Chandigarh said that making false promises to marry someone or get their consent for sexual intercourse can cause rape in some cases.

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‘Call perception of fact’, current matter and decision

The Supreme Court settled the ‘misconception of fact’ in the state of Karnataka (2003) for the first time. This ruled that to implement IPC section 90 cases, such cases have to fulfill two conditions.

“First, it should be shown that consent was given under the misconception of fact. Secondly, it should be proved that the person who had obtained the consent knew or the reason for believing was given – as a result of such a misconception, ”said this.

The court then said that he had “serious doubt” that the promise of marriage motivated the complainant in a case related to consent to intercourse with the person, citing his knowledge about the fact that caste Such marriage was difficult due to differences and “rigid” rigid “protest against their families”.

In the current case -Virendra Yadav vs Madhya Pradesh State -The court said that the prosecution or complainant was a married woman and an FIR accusing them of repeated rape and criminal intimidation under IPC Section 376 (2) (N) and 506. Had recorded Although. , The court said that a woman who is already married cannot file a complaint.

It was also noted that the woman who recorded the cedar married a man who worked as a driver and she had two children. Subsequently, he grew to befriend a man in his neighborhood – who promised his wife to divorce him. The two had physical relations, after which the man refused to enter the Vartalk with him, saying that he was not in a position to divorce his wife.

The court rely on the decision in the NAIM Ahamed vs State (2023) in 2023, which had a relationship with the prosecution -a married woman and the mother -and -a -half man of three children and demanded to prosecute her for her failure to marry her. of. In that case, the court mentioned that the woman was mature and intelligent to understand the importance and consequences of the moral/immoral quality of the act she had agreed.

In the current case, the woman got a divorce from her husband by mutual consent in 2014, left her three children with them, the court said, “… if her complete conduct during such relations with the accused is closely closely If seen, she is closely seen, it appears that she had cheated her husband and three children by creating a relationship with the accused, for which she had a choice.

In 2015, when there were disputes between the woman and her neighbors, he filed a complaint against her to rape her on the pretext of false promise of marriage, the court said. Eventually, the court said that it cannot be said that the woman agreed to sexual relations based on “misconception of facts”.

The court dismissed the cedar of the registered rape against Virendra Yadav, saying that in such a case, “Kali requires an FIR”, as “will increase the long-faced process of conducting the test”, But accusations on their marked value do not indicate commission of any crime.

The court also reiterated the law set by the Supreme Court in several decisions, stating that “when the prosecutor is a married woman”, his consent for physical relations due to the false promise of marriage cannot be brought within the consent structure for physical relations. Has obtained based on “misconception of facts”.

(Edited by Madhurita Goswami)

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