Misguided consent for sex can’t be called a free one: HC
NAGPUR: Consent for sexual intercourse provided under the misconception of fact cannot be considered a free one, the Nagpur bench of Bombay high court (HC) ruled while rejecting a man’s complaint for quashing an FIR for rape against him.
Police lodged charges against a man on a complaint filed by his former fiancée, after being deserted by him. She charged the Bhandara man of establishing physical contact with her at a jungle resort on the promise of marrying her soon.
“Facts stated in the FIR and the petitioner’s conduct clearly show that his intentions were sinister. He established sexual intercourse against the survivor’s will by obtaining her consent under a promise to marry. Such a consent cannot be said to be free consent. The consent given under the misconception of fact is not a free one,” a division bench comprising Justice Atul Chandurkar and Justice Govinda Sanap held.
Observing the petitioner’s act of coition was not a simple case of cheating, the bench said it was coupled with the serious offence of rape. “It can be gathered on the basis of material that the accused had hidden his intention of not marrying the girl once his sexual lust got satisfied,” the judges said. The intention of an accused to commit offence in such cases should be gathered from the totality of facts…,the bench added. “Looking at the facts of the case from any angle, it shows that this is not a fit case to quash FIR,” the judges said.
After the couple were engaged on February 22, 2021, their marriage was fixed for April in Gadchiroli. However, it was first postponed due to the pandemic and then due to the girl contracting coronavirus.
The youth arranged a party at a Karhandla resort in June, where he forced himself on her in an inebriated condition and on the assurance that they would soon tie the nuptial knot. He again performed the act in the morning against her consent. After the incident, the youth started avoiding the girl, citing compatibility issues.
Subsequently, the survivor from Gadchiroli lodged a rape complaint against the youth, who knocked the HC’s doors, to quash it, contending that her allegations are frivolous.