Refusal of father to accept marriage does not amount to false pretext by accused; rape convict acquitted in light of ‘consent’  

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. allowed an appeal filed by the appellant against of the order of the trial court whereby he was convicted under Section 376 IPC.

The prosecution case was that the appellant had committed rape on the prosecutrix on the false pretext of marrying her. It was alleged that after the first occasion of sexual intercourse, the appellant promised to marry the prosecutrix to which she consented. Thereafter, as admitted by the prosecutrix, they remained in a love affair for 1 and half years where they cohabitated regularly. The prosecutrix had intercourse with the appellant on various occasions of her own free will. 15 days prior the complaint, they also tried to fly away but were caught by the mother of the prosecutrix. It was proved that the prosecutrix became pregnant and gave birth to appellant’s child. It was alleged that the appellant finally refused to marry her. Thus, the complaint was filed and the appellant was convicted as aforementioned.

The High Court perused the record and found that after the mother of the prosecutrix came to know about the affair on the night when the appellant and prosecutrix attempted to flee, she talked to appellant’s father. His father, however, refused to give consent to their marriage. The Court observed that the trial court ignored the fact that the prosecutrix continued to have sexual intercourse with the appellant of her own free will. It was never proved that the appellant, on the first occasion, did not intend to marry her. It was only the father of appellant who refused to accept her as the daughter-in-law. Consent of the prosecutrix for voluntary sexual intercourse, in this case, was obtained neither by fraud nor on a misconception of facts. Holding thus, the High Court set aside the order of the trial court and acquitted the appellant. The appeal was, thus, allowed. [Kalam Sk. v. State of W.B.,2018 SCC OnLine Cal 6548, decided on 20-09-2018]

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