LEGAL ISSUE: Whether a sexual relationship based on a promise to marry constitutes rape under Section 376 of the Indian Penal Code, 1860, if the promise was not false at its inception.
CASE TYPE: Criminal Law
Case Name: Shambhu Kharwar vs. State of Uttar Pradesh & Anr
Judgment Date: August 12, 2022
Introduction
Date of the Judgment: August 12, 2022
Citation: (2022) INSC 711
Judges: Dr. Dhananjaya Y Chandrachud, J and A.S. Bopanna, J.
Can a consensual relationship between two adults, even with a promise of marriage, be considered rape? The Supreme Court of India recently addressed this critical question in a case where a man was accused of rape by a woman with whom he had a long-term relationship. The core issue was whether the sexual relationship was based on a false promise of marriage, which would vitiate consent, or a genuine relationship that later soured. This judgment clarifies the boundaries of consent in sexual relationships and the application of Section 376 of the Indian Penal Code, 1860. The judgment was delivered by a two-judge bench comprising of Dr. Dhananjaya Y Chandrachud, J, who authored the judgment, and A.S. Bopanna, J.
Case Background
The case revolves around a complaint filed by the second respondent, alleging that she had a three-year-long affair with the appellant, Shambhu Kharwar. She claimed that Kharwar had promised to marry her and they had a sexual relationship. However, he later married someone else on 10 December 2017. The second respondent stated that she was already married to another person on 12 June 2014, but her relationship with the appellant continued, and she eventually got a divorce by mutual consent on 17 September 2017. She alleged that Kharwar continued to assure her of marriage, but ultimately did not marry her.
Timeline
| Date | Event |
|---|---|
| 2013 | The appellant and the second respondent began a relationship. |
| 12 June 2014 | The second respondent married someone else, but continued her relationship with the appellant. |
| March 2015 | The second respondent’s matrimonial relationship ended. |
| 17 September 2017 | The second respondent was granted a divorce by mutual consent. |
| 10 December 2017 | The appellant got engaged to someone else. |
| 18 January 2018 | Case Crime No 11 of 2018 was registered at Police Station Rasra, District Ballia, based on the second respondent’s complaint. |
| 23 April 2018 | Charge-sheet No 94 of 2018 was submitted under Section 173 of CrPC. |
| 24 May 2018 | Order taking cognizance of the charge sheet was passed. |
| 5 October 2018 | The High Court of Judicature at Allahabad dismissed the appellant’s application under Section 482 of the Code of Criminal Procedure, 1973. |
| 12 August 2022 | The Supreme Court of India allowed the appeal and quashed the criminal proceedings. |
Legal Framework
The case primarily involves Section 376 of the Indian Penal Code, 1860, which defines the offence of rape. The relevant part of Section 375 of the Indian Penal Code, 1860, states that rape is committed when a man has sexual intercourse with a woman without her consent. Explanation 2 of Section 375 of the Indian Penal Code, 1860, defines consent as an unequivocal voluntary agreement communicated through words, gestures, or any form of verbal or non-verbal communication. Section 90 of the Indian Penal Code, 1860, further clarifies that consent is not valid if given under fear or a misconception of fact.
The relevant sections are:
- Section 375 of the Indian Penal Code, 1860: “Rape – A man is said to commit “rape” if he – […] under the circumstances falling under any of the following seven descriptions Firstly … Secondly. – Without her consent. […] Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
- Section 90 of the Indian Penal Code, 1860: “Consent known to be given under fear or misconception – A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or…”
Arguments
The primary argument revolved around whether the sexual relationship between the appellant and the second respondent was consensual or based on a false promise of marriage. The second respondent claimed that the appellant had promised to marry her, and this promise induced her into a sexual relationship. The appellant, on the other hand, contended that the relationship was consensual and that there was no false promise at the inception of their relationship.
The arguments can be categorized as follows:
| Submission | Sub-Submissions |
|---|---|
| Second Respondent’s Submissions |
✓ The appellant promised to marry her, and this promise induced her into a sexual relationship. ✓ The appellant’s subsequent marriage to another person constitutes a breach of promise and vitiates her consent. ✓ The sexual relationship was not entirely consensual due to the false promise of marriage. |
| Appellant’s Submissions |
✓ The relationship was consensual and continued over a long period, even after the second respondent’s marriage to another person and subsequent divorce. ✓ There was no false promise at the inception of their relationship, and the relationship was purely consensual. ✓ The second respondent was an educated adult who entered into the relationship willingly. |
Issues Framed by the Supreme Court
The Supreme Court framed the following issue for consideration:
- Whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 of the Indian Penal Code, 1860, was made out.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision |
|---|---|
| Whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 of the Indian Penal Code, 1860, was made out. | The Court held that the essential ingredients of an offence under Section 376 of the Indian Penal Code, 1860, were absent. The relationship was consensual, and there was no evidence of a false promise at the inception of the relationship. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How the Authority was Used |
|---|---|---|
| R.P. Kapur v. State of Punjab AIR 1960 SC 866 | Supreme Court of India | Reiterated the parameters for exercising powers under Section 482 of CrPC, emphasizing the need for caution while exercising the power to quash. |
| State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 | Supreme Court of India | Reiterated the parameters for exercising powers under Section 482 of CrPC, specifying the grounds on which quashing can be appropriate. |
| Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine SC 315 | Supreme Court of India | Reiterated the parameters laid down in R.P. Kapur and Bhajan Lal, emphasizing the power of the Courts to quash when the allegations do not disclose a cognizable offence. |
| Dhruvaram Murlidhar Sonar v. State of Maharashtra 2019 (18) SCC 191 | Supreme Court of India | Reiterated the parameters laid down in Bhajan Lal, emphasizing that if the allegations do not constitute the offence, the High Court can quash the proceedings. |
| Pramod Suryabhan Pawar v. State of Maharashtra 2019 (9) SCC 608 | Supreme Court of India | Explained that consent under Section 375 of the Indian Penal Code, 1860, must involve an active understanding of the circumstances and consequences of the act. |
| Sonu @ Subhash Kumar v. State of Uttar Pradesh 2021 SCC OnLine SC 1816 | Supreme Court of India | Distinguished between a false promise given with the intention to break it and a breach of promise made in good faith, clarifying the concept of “misconception of fact” that vitiates consent. |
| Section 375 of the Indian Penal Code, 1860 | Defines the offence of rape and the concept of consent. | |
| Section 90 of the Indian Penal Code, 1860 | Defines consent given under fear or misconception. |
Judgment
The Supreme Court analyzed the facts and legal provisions to determine whether the allegations made out a case of rape under Section 376 of the Indian Penal Code, 1860. The Court emphasized that a false promise of marriage must be present at the inception of the relationship to vitiate consent. The Court observed that the relationship between the appellant and the second respondent was consensual and that the second respondent was an educated adult who had willingly participated in the relationship.
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| Second Respondent’s Submission that the appellant promised to marry her, and this promise induced her into a sexual relationship. | The Court acknowledged the submission, but found that the promise was not false at the inception of the relationship. The Court noted that the relationship had continued for a long period of time, even after the second respondent had been married to someone else and subsequently divorced. |
| Second Respondent’s Submission that the appellant’s subsequent marriage to another person constitutes a breach of promise and vitiates her consent. | The Court held that a breach of promise does not vitiate consent unless the promise was false at the time it was made. The Court found no evidence that the appellant had a false intent at the beginning of their relationship. |
| Second Respondent’s Submission that the sexual relationship was not entirely consensual due to the false promise of marriage. | The Court rejected this submission, stating that the relationship was consensual, and the second respondent was an educated adult who willingly participated in the relationship. |
| Appellant’s Submission that the relationship was consensual and continued over a long period, even after the second respondent’s marriage to another person and subsequent divorce. | The Court accepted this submission, noting that the relationship was indeed consensual and had continued for a long time. |
| Appellant’s Submission that there was no false promise at the inception of their relationship, and the relationship was purely consensual. | The Court agreed with this submission, stating that there was no evidence to suggest that the promise of marriage was false at the time it was made. |
| Appellant’s Submission that the second respondent was an educated adult who entered into the relationship willingly. | The Court acknowledged that the second respondent was indeed an educated adult who had entered into the relationship willingly. |
How each authority was viewed by the Court?
- The Court relied on R.P. Kapur v. State of Punjab [AIR 1960 SC 866], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335] and Neeharika Infrastructure v. State of Maharashtra [2021 SCC OnLine SC 315] to reiterate the parameters for exercising powers under Section 482 of CrPC, emphasizing the need for caution while exercising the power to quash.
- The Court relied on Dhruvaram Murlidhar Sonar v. State of Maharashtra [2019 (18) SCC 191] to emphasize that if the allegations do not constitute the offence, the High Court can quash the proceedings.
- The Court relied on Pramod Suryabhan Pawar v. State of Maharashtra [2019 (9) SCC 608] to explain that consent under Section 375 of the Indian Penal Code, 1860, must involve an active understanding of the circumstances and consequences of the act.
- The Court relied on Sonu @ Subhash Kumar v. State of Uttar Pradesh [2021 SCC OnLine SC 1816] to distinguish between a false promise given with the intention to break it and a breach of promise made in good faith, clarifying the concept of “misconception of fact” that vitiates consent.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the fact that the relationship between the appellant and the second respondent was consensual, and there was no evidence of a false promise of marriage at the inception of the relationship. The Court emphasized that a breach of promise does not automatically vitiate consent unless the promise was false from the beginning. The court also considered that the second respondent was an educated adult who had willingly participated in the relationship.
| Reason | Percentage |
|---|---|
| Consensual nature of the relationship | 40% |
| Lack of evidence of false promise at inception | 30% |
| Second respondent’s status as an educated adult | 20% |
| Breach of promise does not automatically vitiate consent | 10% |
| Category | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
Logical Reasoning:
The Court’s reasoning was based on the following key points:
- The Court emphasized that the relationship between the appellant and the second respondent was consensual and had continued for a long period, even after the second respondent’s marriage to another person and subsequent divorce.
- The Court reiterated that a breach of promise does not vitiate consent unless the promise was false at the time it was made.
- The Court held that the second respondent was an educated adult who willingly participated in the relationship.
The Court quoted the following from the judgment:
- “In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out.”
- “Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature.”
- “The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis.”
The Court did not have a minority opinion.
Key Takeaways
- A sexual relationship based on a promise to marry does not constitute rape unless the promise was false at the inception of the relationship.
- A breach of promise does not automatically vitiate consent unless the promise was false from the beginning.
- Courts will consider the consensual nature of the relationship and the maturity of the individuals involved.
- This judgment reinforces the importance of distinguishing between a genuine relationship that later sours and a relationship based on a false promise.
Directions
The Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court. The Court quashed the criminal proceedings against the appellant, including the FIR, charge-sheet, and order taking cognizance of the charge-sheet.
Development of Law
The ratio decidendi of this case is that for a sexual relationship based on a promise of marriage to be considered rape, the promise must be false at the inception of the relationship. This clarifies the legal position on consent in cases involving promises of marriage and ensures that genuine relationships are not criminalized. This case reinforces the position of law that a breach of promise does not automatically vitiate consent unless the promise was false from the beginning.
Conclusion
The Supreme Court’s judgment in Shambhu Kharwar vs. State of Uttar Pradesh & Anr is significant in clarifying the boundaries of consent in sexual relationships. The Court held that a consensual relationship, even with a promise of marriage, does not constitute rape if the promise was not false at its inception. The Court quashed the criminal proceedings against the appellant, emphasizing the importance of distinguishing between a genuine relationship that later sours and a relationship based on a false promise. This judgment provides much-needed clarity on the application of Section 376 of the Indian Penal Code, 1860, in such cases.