Mumbai: Observing that the consent obtained under the promise of marriage is not free consent, the Nagpur bench of the Bombay high court has dismissed a revision application filed by a man accused of rape seeking discharge from the case. The accu-sed had contended that the complainant, a 21-year-old, voluntarily had sex with him and hence the ingredient of section 376 (rape) of the Indian Penal Code (IPC) is not attracted.
Ritesh Aswar had filed a revision application before Justice M.G. Giratkar of the Nagpur bench contending that he had filed a discharge application before the sessions court in Nagpur but the court dismissed it.
The petitioner’s lawyer had contended before the court that the material brought on record shows that the victim was a consenting party for sexual intercourse. She is major and, therefore, the offen-ce punishable under section 376 is not made out, he said. The lawyer also relied upon a previous order of the HC in another case involving similar facts where the FIR was quashed.
It was pointed out to the court that, from the perusal of the complaint, it appeared that the applicant had promised to marry the woman. But as her menstrual cycle was interrupted, the accused started avoiding her. She had asked the man to marry her but he ignored her requests and, therefore, by way of last resort, she lodged the report.
After hearing all arguments, Justice Giratkar observed, “Whether consent given by the victim was free consent or not is to be decided after recording evidence. Section 90 of the IPC defined consent,” said the judge. Justice Giratkar further added that the apex court in the case of the state of UP v/s Naushad has held that “consent obtained under the promise of marriage is not free consent.” “Hence, the present revision is liable to be dismissed, Accordingly, revision is dismissed,” said that judge.
However considering the nature of facts involved in the case while dismissing the application, the HC also directed the trial court to decide the trial within a period of six months.
