Long-Term Intimate Relationships Can't Be Called Rape Just Because Marriage Didn't Happen

The Hon'ble Delhi High Court in Shivam Pandey v. State [CRL.A. 1069/2023] dated February 13, 2025, held that consensual physical relationship between adults based on love and affection does not amount to rape, even if marriage eventually does not take place. The Court emphasized that where physical relationship continues for a substantial period, consent cannot be said to be based solely on the promise to marry. The Court set aside the conviction of a man sentenced to 10 years' rigorous imprisonment under Sections 366 and 376 of IPC.

Facts of the Case

The appellant, Shivam Pandey, was convicted by the Additional Session Judge (SFTC) Dwarka Courts, New Delhi in SC No. 88/2020 arising out of FIR No. 597/2019 registered at PS Baba Haridas Nagar under sections 366 and 376 of IPC. He was sentenced to 10 years of rigorous imprisonment vide an order dated September 13, 2023, with the sentencing order passed on December 8, 2023. At the time of the High Court hearing, the appellant had undergone 1 year 3 months 20 days of imprisonment, with remission of 3 months, leaving an unexpired portion of the sentence of 8 years 5 months 10 days.

The case originated when the father of the prosecutrix registered an FIR stating that his daughter, aged about 20 years, went missing on November 3, 2019. He suspected that she had gone with the appellant, who was about 18 and a half years old. They were subsequently found at Dharuhera, Haryana, and the appellant was arrested. After completion of investigation, a chargesheet was filed against the appellant, and charges were framed under section 366 and 376 of IPC. The prosecution examined a total of 4 witnesses to prove their case beyond reasonable doubt, and thereafter, the statement of the appellant was recorded under section 313 of CrPC.

The learned Trial Court, after analyzing the evidence on record, convicted the appellant for the said charges and sentenced him to 10 years of rigorous imprisonment, leading to the present appeal.

As per the prosecutrix's testimony, she and the accused had been studying together in the same class, section, and school since class 9th and passed their 12th class in 2018. After passing 12th class, she got admission in JBT (Junior Basic Training).

Their relationship began on June 18, 2018, when the accused met her at Vijay Enclave bus stop, Dabri. From there, they went to Kalkaji Temple by auto, then to Purana Quila (Old Fort), and thereafter returned to their respective houses. After that, they used to talk to each other over phone and send messages on WhatsApp.

The prosecutrix testified that in August 2018, the accused called her to Vijay Enclave bus stop, where she met him around 11:00 am. From there, they went to Buddha Jayanti Park by auto, and returned to their respective houses in the evening. On December 31, 2018, the accused called her and asked her to accompany him to a room for a party, but she refused.

On March 22, 2019, the accused again called her to Vijay Enclave bus stop. From there, he took her to an OYO Hotel in Mahipalpur. At the hotel, the accused promised to marry her, after which she gave her consent for marriage. Thereafter, they established physical relations on the same day and returned to their respective houses in the evening. In April 2019, the accused again took her to the same hotel and established physical relations.

On November 4, 2019, the accused asked the prosecutrix to come to Sai Baba Mandir, Najafgarh Road. Upon meeting, he asked her to accompany him to live somewhere together, or else he would commit suicide. They took a bus to Palam, then a train to Gurugram. The accused sold his mobile phone for Rs. 1,000/- and booked a room in an OYO Hotel in Gurugram where they stayed for one night. The next morning, he sold the prosecutrix's phone for Rs. 2,800/-, and they went to Dharuhera. In Dharuhera, they took a room on rent and stayed there for 9-10 days, during which they had physical relations.

During their stay, the accused became emotional remembering his family and went out to fetch rat killer to commit suicide, but couldn't get it. He later quarreled with the prosecutrix and threw her out of the room at 10:00 pm. She then borrowed a phone from a stranger and called the accused's father to inform him of their whereabouts.

In cross-examination, the prosecutrix admitted that she met the accused after 12th class through Facebook, where he had sent her a friendship request. She acknowledged that her visit to the hotel with the accused on March 22, 2019, was not pre-planned, and the room was booked in the accused's name. Significantly, she admitted: "I knew that due to different castes to which we belonged, my marriage with accused was difficult." She stated that she never refused to accompany the accused to the hotel room since he had promised to marry her. She also admitted that on November 4, 2019, she did not object to boarding the train because the accused had threatened to commit suicide if she refused to accompany him.

The prosecutrix's father, testifying as PW4, stated that in 2019, his daughter was doing an ANM Course from Najafgarh Health Centre and was staying in the government hostel of the health center. On November 2, 2019, she came home from the hostel. The next day, she left the house around 1:30-2:00 pm to purchase study materials at the market. When she didn't return by 5:00-5:30 pm, he called her mobile phone, but it was switched off. That evening around 8:00-9:00 pm, he called the mother of the accused to inquire about his daughter, as the accused was her friend. The mother informed him that the accused had not been at home since the afternoon.

PW4 further testified that the accused had visited their house 3-4 times prior to November 3, 2019. After waiting 3-4 days, he went to the police station and filed a missing person complaint. A few days later, he received a call from a police station in Rewari, Haryana, informing him that the accused and the prosecutrix were present there. He then went to PS Baba Haridas Nagar, and from there, along with Inspector Rakesh and a lady police officer, went to Rewari, Haryana, to bring back the prosecutrix and the accused.

In cross-examination, PW4 revealed that his daughter had previously consumed poison and been admitted to DDU Hospital for one day in 2019. When he inquired why she had taken the poisonous tablets, she told him it was because he was not permitting her to meet the accused. He also stated: "About one and half month prior to the incident I came to know that prosecutrix used to love to accused... After 03.11.2019, I came to know that Accused and prosecutrix were willing to marry to each other."

The appellant filed the present appeal, arguing through counsel that the case involved consensual physical relations based on love and affection with no criminality involved. The counsel contended that the Trial Court failed to appreciate that there was no physical relation between the prosecutrix and the appellant on the alleged promise of marriage. Rather, the prosecutrix accompanied the appellant to the hotel on November 3, 2019, out of her own free will, and on an earlier occasion, had even consumed poison when her father objected to her relationship with the appellant. The counsel also pointed out that the prosecutrix was older than the appellant, which showed her maturity and that she could not be easily persuaded.

The respondent State, through the Additional Public Prosecutor, supported the impugned judgment, arguing that the testimony of the prosecutrix was clear and the Trial Court had correctly appreciated the evidence.

Issue

Whether consensual physical relations between adults in a romantic relationship that continues for a substantial period, where marriage does not materialize despite initial promises, can amount to rape under Section 375/376 IPC.

Held by the Court

The Hon'ble Delhi High Court in CRL.A. 1069/2023 held that:

1. The Court began by examining the relevant legal provisions, referring to Section 375 of IPC which defines rape, and Section 90 which states that consent given under misconception of fact is not valid consent. The Court cited Supreme Court decisions that established the critical distinction between "false promise to marry" and "breach of promise to marry."

   
   

2. The Court referred to the Supreme Court judgment in Deepak Gulati v. State of Haryana (2013), which observed: "Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side." The Supreme Court had emphasized that courts must carefully examine whether the accused had actually wanted to marry the victim or had made a false promise only to satisfy his lust, noting the distinction between mere breach of promise and not fulfilling a false promise.

   
   

3. The Court also cited the recent Supreme Court judgment in Mahesh Damu Khare v. State of Maharashtra (2024), which held: "If a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her."

   
   

4. The Court emphasized that time and again, the Supreme Court has laid down the distinction between two concepts: (i) false promise to marriage and (ii) breach of promise to marry. If a promise to marry is given in bad faith with no intention to adhere to it, and a woman on the pretext of this promise gives her consent to engage in a sexual act, then said consent will be vitiated by virtue of section 90 of IPC, attracting the rigors of section 375/376 of IPC. However, in cases of breach of promise to marry, if the promise was made in good faith but subsequently could not be fulfilled due to unforeseen circumstances or circumstances beyond control, it cannot be termed as a false promise to marry and be a reason to prosecute a person under Section 376.

   
   

5. The Court crucially noted: "Also, it is to be noted that if there is consensual physical relationship continues for over a substantial/long/extended period, it cannot be said that the consent was purely based on the promise to marry."

   
   

6. Applying these principles to the present case, the Court analyzed the evidence and found that the appellant and the prosecutrix were in love with each other. The prosecutrix gave her consent for marriage, and subsequently, they entered into a physical relationship. Their relationship had continued from March 2019 to November 2019, during which time the prosecutrix was aware of the difficulty in marriage due to caste differences. The Court observed: "There is no evidence led by the prosecution to show that the appellant did not intend to marry the prosecutrix or refused to marry the prosecutrix."

   
   

7. The Court concluded: "The appellant and the prosecutrix were both adults, consenting individuals and established physical relationship being in love with each other and out of their own free will. The marriage for whatever reason could not happen between the appellant and the prosecutrix but it cannot be said that physical relations were established on account of a false promise to marry. In order to convict a person on false pretext of marriage, there must be a clinching and clear evidence that physical relations were established only on the basis of promise to marry which was never intended to be kept. The same has not been proved."

   
   

8. The Court further noted that the prosecutrix, who was present in Court during the hearing, stated she did not want any interference in her life from the appellant. The Court thus allowed the appeal, set aside the impugned judgment and sentence, and ordered the appellant's immediate release. The Court also directed that the appellant ensure neither he nor any person of his family shall interfere in the life of the prosecutrix or her family members, or contact her through any mode, be it WhatsApp, mobile, or any other manner.

Relevant Sections

Section 375 of IPC: "A man is said to commit 'rape' if he—(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent."

Section 90 of IPC: "A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or"

Cases Referred

1. Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 - The Supreme Court observed that consent may be express or implied, coerced or misguided, obtained willingly or through deceit. The Court noted that there is a clear distinction between rape and consensual sex, and courts must carefully examine whether the accused had actually wanted to marry the victim or had made a false promise only to satisfy his lust. The Court emphasized that there may be cases where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused was unable to marry her despite having every intention to do so. Such cases must be treated differently.

   
   

2. Mahesh Damu Khare v. State of Maharashtra, 2024 SCC OnLine SC 3471 - The Supreme Court addressed the distinction between giving a false promise and committing breach of promise. In case of a false promise, the accused from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceived her by giving a false promise only with a view to satisfy his lust. In contrast, in case of breach of promise, the accused might have given the promise with all seriousness but later encountered unforeseen circumstances that prevented fulfillment of the promise. The Court held that if a man is accused of having sexual relations by making a false promise of marriage, the physical relationship must be directly traceable to the false promise made and not qualified by other circumstances. The Court emphasized that in situations where a physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the relationship was purely because of the alleged promise of marriage.

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