Consent Given By Woman For Sexual Activity Under Fear Amounts To Rape: Allahabad High Court

The Allahabad High Court held that, if a consent is given by a woman for sexual activity under fear or misconception, that would amount to rape.

The Court held thus in an application preferred by the accused under Section 482 of the Criminal Procedure Code (CrPC), seeking quashing of the case pending before the Sessions Judge.

A Single Bench of Justice Anish Kumar Gupta elucidated, “… a man establishes a sexual relationship with a woman against her will and without her consent is said to have committed rape on the woman. However, if a man establishes sexual relationship with a women with her consent, then, such sexual activity would not amounts to rape. However, if such consent was given by the woman under fear or misconception, such sexual activity with such tainted consent would amounts to rape.”

Advocate Gaurav Kakkar appeared for the applicant while AGA Pankaj Srivastava appeared for the opposite parties.

Brief Facts -

The victim submitted a complaint before the Police seeking registration of FIR and strict action against the applicant/accused. Hence, an FIR was registered in 2018 by which the case was registered for the offences under Sections 504, 506, 328, 34, and 376 of the Indian Penal Code (IPC) against the accused and his family members. As per the FIR, the accused and victim were studying together and used to meet each other. The allegation was that once in 2016, the family members of the accused came to the victim’s house and proposed the marriage of him with her. However, the said proposal was rejected by the victim. But the accused continued to talk with the victim. Subsequently, in 2017, the accused went to the victim’s house, informed her about the illness and hospitalization of his mother, and asked her to donate blood. Resultantly, the victim accompanied him but instead of taking her to the hospital, the accused took her to his house, where, except his mother, all his family members met and welcomed her.

The victim was offered tea and after consuming the same, she became unconscious. When she regained her consciousness, she found herself without clothes and she realized that she has been raped. She told them that she will complain about this incident to the police but the accused putting the revolver on his head told her that he loves her and wanted to marry her, and if she refused, he will commit suicide. All the family members came inside the room and called her a bride and at the same time showed her nude pictures, which they had allegedly taken during the incident. The victim got frightened after this and she agreed to marry the accused. Thereafter, under the pretext of marriage, the accused started physical exploitation of the victim by taking her at different places and hotels and on one occasion he had filled vermilion (sindoor) in parting of her hair. He also used to take all her salary forcibly. When the victim pressurized the accused to marry her, he started avoiding the same. Hence, an FIR was registered against him and his family members.

The High Court in view of the above facts, observed, “… though the applicant and the opposite party no.2 were friends, the opposite party no.2 had never agreed for any relationship with the applicant other than the friendship and that is apparent from the fact that initially the opposite party no.2 has rejected the proposal of marriage with the applicant.”

The Court said that, there was no consent on the part of the victim and therefore, the offence of rape is prima facie constituted against the victim.

“… since the initial relationship was established by the applicant with an element of cheating, threat etc., against the will of the opposite party no.2, prima facie an offence under Section 376 I.P.C. is made out against the applicant”, it further noted.

The Court added that, 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 victim initially under the threat perception created by the accused.

Accordingly, the High Court dismissed the application and refused to quash the proceedings against the accused.

Cause Title- Raghav Kumar v. State of U.P. and Another (Neutral Citation: 2024:AHC:146503)

Appearance:

Applicant: Advocate Gaurav Kakkar

Opposite Parties: AGA Pankaj Srivastava and Advocate Rajesh Kumar.

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