Misguided consent for sex can’t be called a free one: BombayHC

While rejecting a man's criticism for quashing a FIR for rape against him, the Nagpur bench of the Bombay high court (HC) said that consent for sexual activity given under the misperception of reality cannot be considered a free one.

police pursued charges against a man based on a complaint submitted by his previous fiancée. She accused the Bhandara man of making intimate contact with her at a jungle retreat, promising to marry her soon.

The petitioner's actions and the facts stated in the FIR clearly show that he had nefarious intentions. By acquiring the survivor's consent under the promise of marriage, he established sexual intercourse against her will. Such permission cannot be described as voluntary. The permission provided under the mistake of fact is not a free one,” a division bench of Justice Atul Chandurkar and Justice Govinda Sanap decided.

In such situations, the bench concluded, the accused's purpose to commit the crime should be gleaned from the totality of facts, his actions, and other evidence on record. "From whatever perspective, the facts of the case demonstrate that this is not an appropriate case to quash the FIR," it stated.

The bench noted that the petitioner's act of coition was not merely a case of cheating, but was also linked with the terrible crime of rape. "It can be inferred from the evidence that the accused had concealed his desire not to marry the girl once his sexual need had been gratified," the judges wrote. In such situations, the bench stated, the purpose of an accused to commit an offence should be gleaned from the totality of facts... The justices stated, "Looking at the circumstances of the case from whatever viewpoint, it seems that this is not an appropriate case to quash FIR."

The couple got engaged on February 22, 2021, and their wedding date was set for April in Gadchiroli. It was initially postponed due to the pandemic, then again due to the woman catching coronavirus.

In June, the boy threw a party at a Karhandla resort, where he forced himself on her while inebriated on the pretext that they were about to tie the knot. In the morning, he repeated the act against her will. The petitioner began avoiding the respondent after the occurrence, alleging compatibility concerns as a reason.

The Gadchiroli victim filed a rape complaint against the youth who banged on the HC's doors to invalidate it, claiming that her charges were glib.