The law punishing rape under Section 376 of the Indian Penal Code (IPC) is being misused like a weapon by women these days when differences arise between a woman and her male partner, the Uttarakhand High Court recently said [Manoj Kumar Arya v. State of Uttarakhand].
Justice Sharad Kumar Sharma made the remark while quashing criminal proceedings initiated against a man who was booked for having sexual relations with a woman allegedly on the pretext that he would marry her.
“In fact, the offence under Section 376 of the IPC as of now in this modernised society is being misused as a weapon by the females to be misutilized (sic), as soon as there arise certain differences between herself and her male counterpart, and rather it is being used as a weapon to duress upon the other side for a number of undisclosed factors, and it cannot be ruled out, that the provisions contained under Section 376 of the IPC are being rampantly misused by the females,” the judge said.
Notably, the Court also emphasised that the question of whether a promise to marry is false or not must be tested at the inception of such a promise, and not at a later stage.
Applying this test, the Court held that the woman’s complaint of rape, in this case, would not stand since it was made 15 years after the relationship began and considering that the relationship continued even after the accused married another person.
“Ultimately, the conclusion, which has been drawn, is that an element or assurance of marriage, and on that pretext, entering into a consensual relationship, the falsity of an assurance of marriage is to be tested at its initial stage of inception, and not at a subsequent stage. The initial stage, herein, cannot be said to have been prolonged for 15 years, and even continued after the marriage of the applicant,” the Court said.
In this case, the relationship was stated to have begun in 2005. Pertinently, the relationship continued even after the man married another lady, the Court was told.
As such, the bench questioned whether the complainant woman could claim that she had not consented to the relationship.
“When the complainant had voluntarily established a relationship even after knowing the fact, that the applicant is already a married person, the element of consent itself imbibes in it,” the Court opined.
The Court added if there is an element of consent, then the act could not be termed as rape and it would be a consensual relationship.
The judge further observed that the Court is called to balance equity and examine whether a woman played an active role in the relationship, to determine if the offence of rape is made out, considering the gravity of the offence, although “it seems to be a social menace, which is normally levelled against a male.”
The Court further relied on several Supreme Court rulings passed on the aspect of consent and the distinction between a false promise to marry and a breach of such a promise at a later stage, before allowing the plea of the accused to quash the rape case against him.
Advocate Raj Kumar appeared for the accused applicant. Deputy Advocate General TC Agarwal appeared for the State, while advocate Pankaj Singh Chauhan appeared for the complainant-woman.
Source: Bar and Bench