No rape on false promise if woman already married: Supreme court

The Supreme Court has held that a rape case on the false pretext to marry cannot be prosecuted by a married woman involved in a consensual relationship without getting a divorce.
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A bench headed by justice CT Ravikumar quashed a rape case against the accused, whose identity was not revealed, and set aside an August 1, 2022 Madhya Pradesh high court order that refused to scrap the case registered against him at a Mahila police station in Satna on December 11, 2020.
The decision of the court came in a peculiar set of facts where the accused had a physical relationship with his landlady, who was 10 years older than him, and even solemnised their marriage at a temple in January 2019 under the impression that she had divorced her earlier husband. Though they were in a relationship since 2017, the two began to live together after their informal marriage in the same house where the woman was staying with her parents and a teenage daughter from the first marriage.
Things took a turn after the accused refused a court marriage, leading to the woman filing a criminal case against him under Section 376(2)(n) of the Indian Penal Code (IPC). This section prescribes punishment for a person who “commits rape repeatedly on the same woman”, and the minimum sentence is 10 years in prison extending up to a life term.
The petition, on behalf of the accused, was filed by lawyer Ashwani Kumar Dubey.
The bench, also comprising justice Rajesh Bindal, noted that contrary to the woman’s claim in the FIR that she got a divorce from her husband on December 10, 2018, the original record proved that the decree of divorce by mutual consent was dated January 13, 2021. This showed that she was in a relationship with the accused even when her earlier marriage was subsisting.
Justice Bindal, writing the judgment for the bench, said, “It is not a case where the complainant (woman) was of an immature age who could not foresee her welfare and take right decision. She was a grown up lady about 10 years elder to the appellant. She was mature and intelligent enough to understand the consequences of the moral and immoral acts for which she consented during subsistence of her earlier marriage.”
The court added: “In fact, it was a case of betraying her husband.”
During arguments, it was established that the accused who was a tenant at the complainant’s property had to shift in 2018 to Maharashtra for his job. He used to come and stay with her family, and the court found evidence to show that they were living as husband and wife. The accused took an insurance policy where he named the complainant as a nominee, and took care of the daughter of the complainant. He also advanced a loan of ₹1 lakh to the complainant that was not returned to him.
“From the contents of the complaint, on the basis of which FIR was got registered and the statement got recorded by the complainant, it is evident that there was no promise to marry initially when the relations between the parties started in the year 2017. In any case, even on the dates when the complainant alleges that the parties had physical relations, she was already married,” the court said.
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“For the reasons mentioned above, the order passed by the High Court (on August 1, 2022) is set aside. FIR No 52 dated December 10, 2020, registered under Section 376(2)(n) and 506 IPC at Police Station, Mahila Thana, District Satna (MP) and all subsequent proceedings thereto are quashed,” the judgment held.
Last year, the top court decided a case on a set of similar facts in Naim Ahamed v State of NCT, where rape charges were set aside on identical grounds. In that case, the complainant was a married woman with three children. She alleged rape on false promise of marriage five years after she began to cohabit with the accused, and had a child from this relationship without obtaining a divorce in her earlier marriage. The court held that it could not be said that the woman had given her consent for a sexual relationship under any misconception.