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Sex after false promise: Rape or not?

Is consensual sex on false promise of marriage not rape? This debate is set to revive again as the Delhi High Court has, for the fourth time in recent times, granted bail to an accused facing such charges prima-facie holding that it did not constitute a rape.

delhi Updated: Jan 24, 2010 23:09 IST
Harish V Nair

Is consensual sex on false promise of marriage not rape?

This debate is set to revive again as the Delhi High Court has, for the fourth time in recent times, granted bail to an accused facing such charges prima-facie holding that it did not constitute a rape.

The Supreme Court has repeatedly held that consent for sex obtained through false promise of marriage amounts to rape.

The latest instance is that of accused K.S. Karki who got bail recently. Karki has been accused of indulging in sex for almost ten years with a woman who believed she was his legally-wedded wife. Police say the woman got this impression after Karki performed a puja in 1999.

However, in April 2009, the woman came to know that Karki was married and had two kids. Police say it is a rape case as the marriage was not valid.

Bigamy or rape?
Lawyers Vijay Aggarwal and Rakesh Makhija, appearing for Karki, told the court that even on the basis of the woman’s complaint, there was no ingredient of rape in the case.

They pointed out that in her first complaint, she clearly stated that she had married Karki on December 28, 1999, as per Hindu rites. They said she also filed a petition seeking maintenance, which only a woman separated from her husband can get. The lawyers said the allegation of rape surfaced for the in the second complaint.

Granting bail to Karki who had been in jail since December 22, 2009, Justice A.K. Pathak upheld the lawyers’ contention that “at the most, only a non-cognizable offence under section 493 IPC (sexual intercourse by a man deceitfully inducing belief of marriage) was made out and it was not a case of rape and, therefore, the police cannot lodge an FIR”.

“The Supreme Court has clearly laid out that if intention to marry is not there, then it amounts to rape as the sex is based on deception. There are a whole lot of judgments in this regard,” Shilpi Jain, lawyer and women’s right activist, says.

But Aggarwal, who has defended many such accused says, “The courts realise that a grown-up woman was expected to be mature enough to understand the consequences of the act in case the man went back on his promise and so it was not seen as a case of deception”.

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