A man accused of rape can be convicted only if he has a malafide intention of not fulfilling a promise of marrying the victim, the Supreme Court Monday said, describing the crime as an assault on the "body and privacy of the victims".
"An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives," said an apex court bench of Justice B.S. Chauhan and Justice Dipak Misra.
The court said this while setting aside a Jan 28, 2010, order of the Punjab and Haryana High Court related to a rape convict from Karnal in Haryana who had eloped with his lover to get married against the wishes of their family members.
"There is a distinction between the mere breach of a promise, and not fulfilling a false promise," the court said.
"There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception," the court said.
"Thus, the court must examine whether there was made, at an early stage, a false promise of marriage by the accused and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence," the apex court judges said.
The high court had upheld the Nov 13, 1998, order of additional sessions judge, Karnal, convicting Deepak Gulati for kidnapping and raping a woman he allegedly loved and wanted to marry.
Gulati was awarded three years' jail for kidnapping and seven years' term for committing rape and both sentences were to be served concurrently.
Going into the sequence of the events leading to the alleged rape and subsequently the arrest of Gulati, the apex court said that at every stage the prosecutrix acted on her own voluntarily.
Gulati was arrested when he along with the woman reached a bus stand in Kurukshetra, for going to Ambala so that the two could get married in a court there.
"To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant," the court said.
"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 court said.
"There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so," the court said.
Such cases "must be treated differently", the court said.
"An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
The court said that Section 90 of Indian Penal Code (consent given under fear or misconception) could not be invoked in such cases, "to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her".
