Can’t fully blame man if married woman consented to intimacy: High Court

Saurabh Malik
Tribune News Service
Chandigarh, July 27

The Punjab and Haryana High Court has made it clear that a man, who developed physical relationship with a married woman and not forcibly but on the pretext of marrying her, could not treated to be entirely at fault if the “victim” consented to be intimate with him in expectation of “prospective marriage”.

Rape case

• Justice Sudip Ahluwalia asserted a bare perusal of the FIR showed there was no allegation that the petitioner had “forcibly” committed sexual intercourse with the complainant
• Her case was that the petitioner had promised to marry her as she was not getting on well with her husband

Granting bail to the accused, the HC ruled that the matter would appear to be a clear-cut case of consensual sex between the parties and marriage in the circumstances would not be feasible.

The ruling by Justice Sudip Ahluwalia came on a plea filed by a rape accused seeking bail in a case registered on March 17 for rape and another offence under Sections 376 and 506 of the IPC and the provisions of Scheduled Castes and Scheduled Tribes Act at Babain police station in Kurukshetra district.

After hearing the counsel for the state and the petitioner, Justice Ahluwalia asserted a bare perusal of the FIR showed that there was no allegation that the petitioner at any time had “forcibly” committed sexual intercourse with the complainant.

On the other hand, her case was that the petitioner had promised to marry her as she was not getting on well with her husband. She, therefore, consented to physical relationship in the expectation of a prospective marriage.

The FIR itself was silent about the age of the complainant. But perusal of its vernacular copy showed in a column that her year of birth was 1991. As such, she had long ago crossed the age of majority.

“To that extent, this would appear to be a clear-cut case of consensual sex between the parties and a marriage in the circumstances would not be feasible at least till such a time as the first marriage of the complainant could be dissolved in accordance with the law. Even till now, her marriage is reported to be subsisting. The petitioner in such circumstances cannot be treated as being entirely at fault in the matter even if the allegation levelled against him is taken to be true on its own face value,” Justice Ahluwalia asserted.

Before parting with the order, Justice Ahluwalia added the FIR did not disclose ingredients of the SC & ST Act. There was no allegation whatsoever that the petitioner had sought to insult or victimise the complainant purely on account of her belonging to the Scheduled Caste. Consequently, addition of offences under the SC & ST Act was “surprising” to say the least.

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