While ruling fully, firmly and finally in favour of the concept that consensual sex is not rape and coming to the rescue of a man for the second time as he faced accusations of rape twice from the same woman in 2018 who accused him of raping her for six years by making false promises of marriage, the Gujarat High Court in a most learned, laudable, landmark and latest judgment titled Rohit Dinanath Ray vs State of Gujarat in R/Criminal Revision Application No. 434 of 2021 that was pronounced finally on July 11, 2023 acquitted the accused in a case of false promise to marry under Section 375 of the Indian Penal Code (IPC). The case was lodged with Gujarat University police station in August 2018. It may be recalled that earlier it had quashed a rape complaint filed with Mahidharpura police station in Surat in May 2018.
While discharging the man from the case registered in Ahmedabad, the single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi had clearly, cogently and convincingly said that, “There is no ground to even assume that he has committed the offence to consider the culpable mentality of the accused. The case is of consensual sex.” It must be also noted that the Bench clearly laid down that, “To establish a false promise, the maker of the promise should have had no intention to uphold it at the time of giving it. The consent under Section 375 of the IPC is vitiated on the ground of misconception of fact….Since the complainant was married, she would have no intention to marry the applicant nor the applicant could have given any promise to marry her.”
It is high time and now lawmakers must stop punishing men who have sexual relationship with women for years and years together because such cases turn out to be consensual and later women misuses penal laws to avenge upon men to either extract money or for some other vested purpose or under the pressure of her parents or somebody else. How long will women be treated as unable to understand what sex means that she has sex for years and years and suddenly starts crying in court that she has been raped for years and years? This open mockery and misuse of penal laws by women must definitely end now!
At the very outset, this brief, brilliant, bold and balanced judgment by the single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi of Gujarat High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The applicant is the accused in the First Information Report (FIR) bearing C.R. No.I-101 of 2018 registered with Gujarat University Police Station, Ahmedabad on 24.08.2018 for the offence punishable under Section 376 of the Indian Penal Code (IPC), who is before this Court to challenge the order passed below Exhibit 11 on 20.04.2021 in Sessions Case No.350 of 2019, whereby his Discharge Application came to be rejected.”
As we see, the Bench then discloses in para 2 that, “Learned Advocate for the applicant Mr. A.B. Desai submitted that in the past, the complainant had lodged FIR on 10.05.2018 against the present applicant vide C.R. No.I-73 of 2018 registered with Mahidarpura Police Station, Surat for the offence punishable under Section 376, 406 and 420 of the IPC, and in view of the settlement arrived at between the parties, on filing a Criminal Miscellaneous Application No.14650 of 2018 before this Court, by way of an order dated 07.08.2018, the FIR came to be quashed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘the Code’).”
Further, the Bench states in para 3 that, “It is further submitted by learned Advocate Mr. A.B. Desai that there was no mention in the Affidavit, so filed by the complainant in the quashing proceedings, of any promise to marry her, nor was there any statement regarding returning of any money and inspite of quashment of the First Information Report, the complainant again preferred a FIR bearing C.R. No.I-101 of 2018, registered with Gujarat University Police Station, Ahmedabad under Section 376 of the IPC.”
Furthermore, the Bench mentions in para 4 that, “Learned Advocate Mr. A.B. Desai stated that the complainant on her own volition had filed the Affidavit in the Quashing Petition and the offences which were registered under Section 376 and other allied Sections of the IPC at Mahidarpura Police Station, Surat were quashed and thereafter, the complainant had preferred the First Information Report before the Gujarat University Police Station, Ahmedabad, so the present applicant had filed a Criminal Miscellaneous Application No.2948 of 2018 for quashing the FIR registered with Gujarat University Police Station, Ahmedabad. The same was disposed as withdrawn, with a liberty granted to applicant for moving an application for discharge.”
To put things in perspective, the Bench envisages in para 6 that, “Referring to the facts of the case, it is submitted that the complainant, a divorced woman had abandoned her husband and her children and had been in a consensual sexual relation with the applicant for a period of six years. Thus, it is submitted that Section 90 of the IPC cannot come to the aid for fastening any criminal liability on the applicant, in view of the earlier FIR been quashed under consent, read with the allegations in the present FIR, no case of any promise to marry or its breach can be made out. It is further submitted that the framing of charge would affect the personal liberty of an individual and thus, every Court even prior to framing of charge is required to apply its mind to consider the question whether there was any ground for the presumption of the offence against the accused and for that purpose, consideration of materials relied upon so as to prima-facie assert whether there are any sufficient grounds for proceeding against the accused, is required to be made.”
Be it noted, the Bench notes in para 14 that, “To establish a false promise, the maker of the promise should have had no intention to uphold it at the time of giving it. The consent under Section 375 of the IPC is vitiated on the ground of misconception of fact. The said misconception should be the basis for the victim to indulge in the said act. Here in this case, as it is noted, the complainant even during the period of her marriage, was in relation with the applicant. She had during her marriage established physical relations with the applicant. Since the complainant was married, she would have no intention to marry the applicant nor the applicant could have given any promise to marry her. The relation which the complainant established with the applicant during the existence of her marriage would be considered as ‘extra marital relation’ and according to her, the applicant had developed friendship on social media and thereafter, had entered into intimate relationship. The complainant on her volition during the subsistence of her marriage had traveled with the applicant to different places and had entered into sexual relations with the applicant. For rape to be committed, the circumstances should be falling under the seven descriptions. Here according to the complainant, she had consented for the relationship on the promise of marriage. Section 90 of the IPC clarifies that consent based on misconception of fact is not consent at all and it is the contention of the complainant that the applicant had engaged in sexual relations with her on the false promise of marriage and therefore, the complainant’s consent based on misconception of fact, i.e. promise of marriage, stands vitiated.”
Most significantly, the Bench clearly points out in para 24 that, “Here in the present case the complainant was a married woman, mother of two children when she developed friendship with the applicant. It appears from the facts that the applicant was knowing that the complainant was a married lady and the complainant too, being married was in relation with the applicant. At the inception of relation, there would not have been any promise to marry, for the complainant to give consent for physical relation on the basis of promise. It is not the case that, but for the false promise by the accused to marry, the complainant had given the consent to have physical relation. The complainant was very well knowing the pros and cons of the relation. It is not the case that false promise of marriage was given at the early stage, the complainant was aware of the nature and consequence of sexual indulgence. After having relation with the accused applicant for considerable long time, the complainant’s husband gave divorce to her. Thereafter too, she continued with her relationship with the accused probably with the hope of a marriage. The FIR was quashed, which was on the consent of the complainant and while withdrawing the charges, the complainant had not secured any assurance of marriage, to presume that there was any false promise of marriage thereafter to give rise for a cause to lodge an FIR for the offence of rape.”
Most forthrightly and as a corollary, the Bench then minces just no words to hold in para 25 that, “In view of the facts as emerging between the parties, no case is made out against the applicant-accused and there is no sufficient ground to pursue the case against the applicant-accused. There is no ground to even assume that the applicant-accused has committed the offence to consider the culpable mentality of the accused. The case is of consensual sex.”
Finally, the Bench concludes by holding in para 26 that, “Therefore, in view of the aforesaid reasons and circumstances, this Criminal Revision Application stands allowed. The order dated 20.04.2021 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in Criminal Case No.350 of 2019 is quashed and set aside. The applicant herein is ordered to be discharged in connection with First Information Report bearing C.R. No.I-101 of 2018 registered with Gujarat University Police Station, Ahmedabad for the offence punishable under Section 376 of the Indian Penal Code. Rule made absolute to the aforesaid extent. Direct Service is permitted.”
All in all, the Gujarat High Court Single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi who is herself a woman has made it indubitably clear that consensual sex cannot be rape. It is really high time and our lawmakers must amend the law and make consensual sex not punishable just like it has been done in case of adultery by a five Judge Constitution Bench comprising of the then Chief Justice of India – Dipak Mishra, Justice AM Khanwilkar, Justice RF Nariman, Justice DY Chandrachud and Justice Indu Malhotra which earlier was punishable prior to the landmark judgment in Joseph Shine case delivered on September 27, 2018! There should not be anymore dilly-dallying on it as it brooks no more delay!
