These days it is very common for the youth to try live-in relationships with their girlfriends and boyfriends. But the problem with such types of relationships is that they seldom get successful. Now if the girl leaves the boy it is fine.

But if the boy leaves the girl it is a disaster for the boy or the girl. Therefore such types of relationships will land you in trouble.

Because problems in such relationships are bound to happen if they don’t culminate into marriage and someone is emotionally hurt. To society, it does not matter if the boy’s side is hurt or not. But if the girl’s side is hurt she generally alleges a false promise to marry.

These cases are used as a blackmail tool to convince a boy an family to make them marry.

Now the issue is what are the legal implications of the same.

These days courts are quite lenient in granting anticipatory bail in such a situation

Nowadays courts take the opinion that whether in such live-in cases, the consent was by fraud or not is to be decided at the trial stage.

Now even assuming the allegations against the petitioner to be correct, at best, a case of consent of the victim for contracting marriage and providing a legal heir to the throne of the Guruji having been obtained by fraud, intoxication, misrepresentation is made out. Then this fact does not require any custodial interrogation because the complainant/victim herself has to testify before the court as and when the petitioner is put to trial, as to whether her consent was obtained by misrepresentation or fraud or through intoxication. It is also not the case that any force, threat or violence were used by the petitioner at any point of time.

Held in Navdeep vs. State of Delhi.

 The case in hand is a strange case where the complainant, who is a married lady having a daughter of 11 years, has leveled serious allegations of the petitioner raping her time and again for the past three years. It is an undeniable fact that the complainant and also the petitioner are having strained relationship with their respective spouses and both of them have not taken any re-course to seek divorce from their respective spouses. With the provision envisaged under Section 90 of the IPC with respect to ‘Consent’, it is not expected of the complainant, who appears to be a well enlightened lady running a dance studio, to submit herself to have sexual relationship with the petitioner just on the alleged promise of marriage made by the petitioner that too not in Delhi alone but also at Jaipur and Dehradun where she had accompanied the petitioner.

Held in Nirmal Vaid vs State

Now when such relationships are present court takes into various circumstances and How much longer is the relationship?

Whether a girl denied a physical relationship?

How educated she is?

Family background?

Possibility of a consensual relationship?

that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact.

In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

As also held in Uday Vs State of Karnataka

There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O’clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married.As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired in. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.

Conclusion

The prosecution faces challenges in applying Section 90 of the Indian Penal Code (IPC), which requires demonstrating that consent was given under a misconception of fact, and the person obtaining consent knew or had reason to believe in this misconception. The court expresses doubt that the promise to marry induced the prosecutrix to consent to sexual intercourse due to the known difficulties in their potential marriage. The court questions whether the appellant knew or had reason to believe that the prosecutrix’s consent was solely based on the promise of marriage. The lack of evidence supporting this belief is noted, and the circumstances suggest the appellant may have thought the consent stemmed from their deep love. The court highlights the prosecutrix’s awareness of the challenges to their marriage and the possibility it might not occur despite the promise. The court concludes that the appellant’s knowledge of the prosecutrix’s consent arising from a misconception is difficult to establish, especially given the strong emotional connection between the parties and the prosecutrix’s own desire for a sexual relationship, irrespective of the promise of marriage.

Adv Nitish Banka

9891549997

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997