‘Consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape’.

It has to be acknowledged, appreciated and applauded right at the outset that in a landmark and laudable judgment delivered by the Jammu and Kashmir High Court in a recent case titled Sunil Kumar vs State of J&K and anr. CRMC No. 512/2017, Nos. 01/2018, 02/2018, 01/2017 dated December 14, 2018, Justice Sanjay Kumar Gupta has held in no uncertain terms that an educated woman is supposed to be fully aware of consequences of having sex with a man before marriage. She cannot voluntarily first have sex with her own free will and later term it as rape or a sexual assault on her. In other words the Jammu and Kashmir High Court has vindicated the time tested adage that, “You cannot eat the cake and keep it too”. Every Court which includes even the top court that is Supreme Court must appreciate it and implement it always in all such similar cases.
To start with, it is first and foremost observed specifically in para 1 that, “Petitioner invokes the inherent jurisdiction of this Court under Section 561-A Cr.P.C. to seek quashing of FIR No. 50/2017 registered with the Police Station, Ghagwal for commission of offences under Sections 376/506 RPC on the complaint of respondent No. 2 who got the FIR registered in terms of Section 156(3) Cr.P.C. on the directions of Learned Chief Judicial Magistrate, Samba by alleging that she was subjected to sexual assault on the marriage promise which the petitioner deny though there was marriage proposal, but the petitioner after coming to know about the antecedent of the respondent No. 2 refused the marriage proposal and there was no relation between the petitioner and respondent No. 2.”
Now coming to para 2, it further illustrates the background and the points on which the petitioner relied stating that, “The case of the petitioner is that he who belongs to respectable family and is serving in the Indian Army recruited in the year 2012 in 5 JAKLI, after recruitment the petitioner underwent initial training for a period of two years without any break. Thus, in the year 2016, there was marriage proposal from the parents of the respondent No. 2 which the parents of the petitioner agreed and marriage was to be solemnized in the month of June 2017. During this period, the petitioner came to know from the respondent No. 2 herself who while making telephonic conversation admitted to have a love affair with somebody else and narrated her physical relation with that person. On knowing this fact, the petitioner refused the marriage proposal upon which the respondent No. 2 and her parents started insisting for marriage and threatened the petitioner to implicate him for the commission of offence. It is stated that petitioner is having the telephonic recording in order to substantiate this plea. Thus, there was no physical relationship between the petitioner and respondent No. 2 as alleged in the complaint.”
To put things in perspective, it is then rightly held in para 12 that, “From bare perusal of contents of complaint, it is apparent that there is no specific mention of date, time and place of alleged rape. General allegations have been leveled that accused has committed sexual intercourse with the complainant in 2014 when he took her to Mc. Lodganj (HP), where he assured for marriage and on account of this developed physical relations with her; that complainant then got pregnant and was duly treated by the accused; that again in 2015-16 accused took her to Dharamshalla and Mc Lodganj, where they again developed physical relations; that she was again taken to Patnitop and Katra by the accused person and developed the physical relations; that whenever accused person had come on leave he used to meet the applicant/complainant here and there and developed physical relations on assurance that he will marry her.”
As it turned out, para 13 then goes on to disclose that, “All allegations of sexual relationship have been leveled on the ground that accused promised to marry with the complainant. If one carefully examines the contents of complaint it is evident that complainant has admitted the fact of her relationship with accused since 2010 and there was a love affair between them. Complainant has admitted that she started her studies at the instance of accused person and presently doing her graduation 3rd year at Degree College, Samba. The accused has shown all his loyalty, love and affection towards the applicant/complainant during all this period. She has also admitted her shagun ceremony took place on 10.2.2017 at Chichi Mata Mandirnadni Hills Samba; she has also stated that marriage was fixed for 11.11.2017; as per complainant accused has refused to solemnize marriage now.”
More importantly, it is then very rightly made clear by the Jammu and Kashmir High Court in para 14 that, “Under Ranbir Penal Code, Section 375(4) states that a man is said to have committed rape if he has sexual intercourse with a woman with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Now-a-days there are cases where boy and girl having love affair, indulging into sexual relationship and ultimately ending into a breakup. Undoubtedly that amounts to consensual sexual relationship as they were in love with each other. In a case of rape, the act of sexual intercourse is forcible and without consent of the woman. However, the consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape.”
Most importantly, it is then also made clear in no uncertain terms in this very same para 14 that, “When a woman is major and educated, she is supposed to be fully aware of the consequences of having sexual intercourse with a man before marriage. In the event of consent obtained by fraud, inducement is a necessary ingredient. There should be some material on record to believe prima facie that the girl was induced by the accused to such an extent that she was ready to have sexual intercourse with him. Promise to marry cannot be said to be an inducement in all cases, it differ from facts of case. Thus, promise to marry in all cases cannot be a condition precedent to have sex. Had the petitioner fraudulent intention not to solemnize marriage right from the day he met victim in 2010, then he would have not asked the prosecutrix to study further and bore her education expense. Where there is mere breach of promise of marriage, and before breach they have sexual relationship, that sexual indulgent may amount to consensual one and not rape as defined in section 376 RPC.”
What’s more, it is then made absolutely clear in para 15 that, “So even if the allegations made in complaint are taken as it is, no case of rape is made out, as the prosecutrix is major and she has known the petitioner since 2010; she would be aware of the result of sexual relationship; she had herself gone with accused at various places as per complaint and indulged into sexual relationship. I am conscious that statement of prosecutrix cannot be brushed aside especially in rape case; but her statement has to be read along with other attending circumstances. Except bald version of prosecutirx, there is nothing on record from which it can prima facie be proved that intention of accused was fraudulent right from the beginning.”
Furthermore, para 17 points out that offence u/s 506 RPC has also been registered. It is then pointed out in para 18 that, “From bare perusal of contents of complaint, it is evident that there is no iota of allegation in this regard.” So the conclusion was foregone and no wonder that petitioner’s contention was accepted by the Jammu and Kashmir high Court!
Finally and perhaps once again most importantly, it is then held very rightly in para 19 that, “In view of the above, I am of considered opinion that the allegations made in the first information report on the basis of complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. This FIR is manifestly attended with mala fide intention and has been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. This petition is allowed and impugned FIR No. 50/2017 registered with the Police Station, Ghagwal for commission of offences under Sections 376/506 RPC, is quashed.”
No doubt, it is a commendable, creditworthy and courageous decision by the Jammu and Kashmir High Court which has minced just no words in making it absolutely clear that an educated woman is supposed to be fully aware of consequences of having sex with a man before marriage. She cannot just get up one day and start screaming that she has been raped since last many years! All women and girls must always bear this in mind before having sex with men!
Each and every woman and girl in India must read this latest, landmark and laudable judgment by the Jammu and Kashmir High Court so that they never again land themselves in trouble by first voluntarily having sex with consent and then later after many years start weeping that she has been sexually assaulted! If they do, then they will be themselves responsible for Courts not stepping up to provide them any relief as we have seen in this case also! Also, all Judges and lawyers must go through this noteworthy judgment which leaves no room for doubt what course of action should be adopted in such cases which keep cropping up time and again!