Consent for sex under fear or misconception amounts to rape: Allahabad HC

The petition was filed by Raghav Kumar under section 482 of Criminal Procedure Code (inherent powers of high court) seeking quashing of the charge-sheet dated December 13, 2018 in case

The Allahabad high court has held if a man develops sexual relationship with a woman with her consent, which was given by her under fear or misconception, such sexual activity would amount to rape.

It is alleged that the applicant first established physical relationship with a woman by making her unconscious. Thereafter, he continued to physically exploit her on the false promise of marriage. (For Rep)

While giving this ruling, Justice Anis Kumar Gupta dismissed a petition filed by one Raghav Kumar of Agra, requesting the court to quash the criminal proceedings going on against him alleging rape of a woman on the pretext of marriage.

The petition was filed by Raghav Kumar under section 482 of Criminal Procedure Code (inherent powers of high court) seeking quashing of the charge-sheet dated December 13, 2018 in case crime no - 211 of 2018) under section 376 (rape) of IPC Agra Mahila Thana, which is pending before the court of district and sessions judge, Agra.

It is alleged that the applicant first established physical relationship with a woman by making her unconscious. Thereafter, he continued to physically exploit her on the false promise of marriage.

The counsel for the petitioner submitted that the applicant and the woman, who is opposite party in this case, were known to each other and were studying together and both were preparing for the civil services examination.

They developed a consensual physical relationship and such relationship continued for a long period of time.

“Since it was a longstanding continuous consensual physical relationship between the parties, therefore, no offence whatsoever under section 376 (rape) of IPC can be said to have been made out against the applicant herein,” argued the petitioner’s counsel.

On the other hand, the state counsel opposed the petition saying that inception of the relationship between the parties is based on cheating and it was a forcible act on the part of the applicant herein, for which no consent was there on the part of the opposite party. Therefore, prima facie an offence under Section 376 (rape) of IPC is made out.

Dismissing the petition, the court in its decision dated September 10 said, “Since the initial relationship was established by the applicant with an element of cheating, threat etc against the will of the opposite party woman, prima facie an offence under section 376 (rape) IPC is made out against the applicant.”

“Though, the subsequent relationship, which appears to be a consensual relationship under the promise of marriage, however, such consent is also stated to be given by the opposite party woman initially under the threat perception created by the applicant herein,” court said.

“Therefore, this court does not find any good reason to quash the proceedings as requested by the applicant, in view thereof, the instant application is accordingly dismissed,” it added.