Calcutta HC: Promise to marry unfulfilled due to family opposition does not constitute rape 

Case Name: Saddam Hussain v. State of West Bengal [C.R.A. 366 of 2015 with CRAN 3 of 2021]

Overview

The Calcutta High Court recently observed that the promise to marry unfulfilled due to family opposition cannot amount to rape if the person had the honest intention of getting married. 

In the present case, an appeal has been made against the order passed by the Additional District & Sessions Judge, Fast Track First Court, Islampur, Uttar Dinajpur. The court had sentenced the appellant under section 376 of the Indian Penal Code, 1860 (IPC), and sentenced him to suffer imprisonment for 10 years and a fine of Rs. 50,000/-, in default to suffer further imprisonment for one year. The judgment was given by a division bench of Justices Joymalya Bagchi and Bivas Pattanayak.

Facts

The appellant cohabited with the minor girl on the false promise of marriage. The minor girl became pregnant as a consequence. She asked the appellant to marry her, which he avoided. The last time cohabitation happened was on 16th February 2010 in a bamboo grove. This matter came to the knowledge of the family members. The appellant refused to marry the victim due to heavy opposition from his family. The victim filed a First Information Report (FIR) under sections 376 and 493 of the IPC. During the trial, the prosecution examined eight witnesses to establish its case. The appellant took the defense of innocence and false implication. The court convicted the appellant under section 376 of the IPC. Now the appellant has approached the Calcutta High Court under criminal appellate jurisdiction.

Arguments on behalf of the appellants

The appellant submitted that the victim was a consenting party. The marriage between the couple could not be possible due to opposition from the appellant’s family. Hence, the appeal should be allowed.

Arguments on behalf of the respondents

The counsel submitted that the victim was a minor at the time of forced sexual intercourse. After the first instance, the appellant had repeatedly cohabited with the victim on the pretext of the false promise of marriage. The victim only cohabited with the appellant on the assurance of marriage. Hence, the appeal should be dismissed.

Judgment

It has been established that the victim cohabited with the appellant on the pretext of marriage. However, the court finds it difficult to accept that the first cohabitation was forcefully done on the minor as this information is absent in the FIR. 

The appellant had promised to marry the victim but the same could not be done due to opposition from his family. It does not mean that the appellant had no intention to marry the victim when they cohabited. The court stated that “mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception”. The victim and appellant wanted to marry each other. Due to opposition from the appellant’s family, the marriage wasn’t held. In addition, the victim was above 16 years old at the time of occurrence of the incident. Thus, the victim had crossed the age of consent. The court held that it would be wrong to punish the appellant as the promise to marry couldn’t be fulfilled due to opposition from his family. Opposition from his family elders has nothing to do with his intention. The court referred to the case of Dilip Kumar v. State of Bihar [(2005) 1 SCC 88] wherein it was held that the prosecution needs to prove that consent was absent. 

Thus, the Calcutta High Court set aside the conviction and acquit the appellant of all the charges.  

Author:

Mili Rawat
Dehradun
B.A.LLB(Hons.) from National Law Institute University, Bhopal.