It is definitely extremely significant to note that while ruling on a very prominent point pertaining to misuse of law, the Madras High Court in a most learned, laudable, landmark, logical and latest judgment titled Rahul Gandhi vs State in Crl. A. No. 548 of 2021 and cited in 2024 LiveLaw (Mad) 257 that was reserved on 6.6.2024 and then finally pronounced on 21.6.2024 has been most unambiguous in holding that when the victim knew that the accused was a married man and father of a child, she could not allege that the consent was obtained on a false promise of marriage. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice M Dhandapani observed sagaciously that while dealing with cases of such nature, the courts had a two-fold duty – firstly to see that women are not misused and secondly and equally that the law is not misused against the male folk. It would be also worthwhile to note here that the Bench underscored that though the courts had to give a soft touch to the evidence of the victims on the premise that women would not be the aggressors against males, it was also important to note that no innocent male was subjected to the vagaries of the women folk. We thus see that the Madras High Court deemed it fit to interfere with the order of the Trial Court since the victim was a consenting party to the sexual act, the act would not attract Section 375 of the IPC and so acquitted the appellant. Very rightly so! We must note that the criminal appeal was filed u/s 374 (2) Cr.P.C. to set aside the conviction and sentence that had been passed in S.C. No.13 of 2021 dated 18.10.2021 by the Sessions Judge of Mahila Fast Track Court, Villupuram, Villupuram District.

At the very outset, this brief, brilliant, balanced and bold judgment authored by Single Judge Bench comprising of Hon’ble Mr Justice M Dhandapani of Madras High Court sets the ball in motion by first and foremost putting forth in para 1 that:
The conviction and sentence imposed on the appellant by the learned Sessions Judge, Mahila Fast Track Court, Villupuram, in S.C. No.13 of 2021 vide order dated 18.10.2021 is put in issue by the appellant, who was arrayed as A-1 by filing the present appeal.

To put things in perspective, the Bench envisages in para 3 that:
Upon completion of trial, while the trial court found A-1 guilty of the offence u/s 375 and 376 r/w 90 and 417 IPC and convicted him for the said offences, however A-1 was sentenced to rigorous imprisonment for a period of 10 years together with a fine of Rs.25,000/-, in default to undergo three months simple imprisonment, but no separate imprisonment was imposed on A-1 for the offence u/s 417 IPC. A-2 and A-4 were acquitted of the charges framed against them. The charge against A-3 stood abated, as she died pending trial. The fine amount to be paid by A-1 was ordered to be given to the prosecutrix for her sustenance and further the District Legal Services Authority was directed to take steps for getting necessary aid from A-1 and give the same to the victim/prosecutrix for leading her life. Aggrieved by the aforesaid conviction and sentence, A-1 has filed the present appeal.

As we see, the Bench discloses in para 4 that:
Shorn of unnecessary details, the case as put forth by the prosecution is as under:-

P.W.1 is the affected woman; P.W.2 is the father of P.W.1 and P.W.s 3 to 5 are relatives of P.W.1. A-1 is alleged to have been in love with P.W.1. A-2, A-3 and A-4 are the father, mother and brother of A-1.

Do note, the Bench notes in para 26 that:
Crimes against women are on the increase in the society. The safety of women in today’s context is in jeopardy and with the outburst of social media, the lures to which the women folk are put into is unquantifiable. But that would not negate the chance of women also being oppressors at times. Only in this context, the Courts, while generally accepts the deposition of women as gospel truth, as they would not come out and depose about they having been wrongfully utilised, however, also with a microscope analyses her evidence to find out that innocent men are not subjected to unnecessary persecution.

Most significantly, most remarkably, most brilliantly and so also most forthrightly, the Bench propounds in para 27 postulating clearly that:
However, it cannot be lost sight of that under the pretext of false promises, women are wrongly utilised in various acts, including the act of eternal submission to satisfy the carnal and physical desires of the opposite gender, even with their consent and in many cases against their wish, either by sugar coated words or by brute force. But not always, it is to be stated that, it is only the male who misuse the women folk, but in the legal conundrum, vicious persons belonging to the female folk, do misuse the law to their advantage and, therefore, in cases of such nature, the duty cast on the court is two-fold, not only to see that women are not misused but equally, the law is not misused against the male folk as well.

More to the point, the Bench hastens to add in para 28 expounding that, However, it is to be kept in mind that in the Indian cultural heritage, women folk do not come out in the open to claim that they have been sexually assaulted or misused physically by the male folk for the reason that the scar of the said act would be on the said woman throughout her life. Therefore, many a times, the women folk do not come out to speak about the attack faced by them physically from the male folk, be it with their consent or without their consent and, therefore, the courts have to look at a case in this backdrop by giving a soft touch to the evidence of the prosecutrix by premising that women would not be the aggressor against male. But while looking at the evidence, it is also the duty of the court to see that an innocent male also is not subjected to the vagaries of the women folk for reasons other than what is projected before the court. Therefore, the courts are to separate the grain from the chaff while analysing the evidence placed before it so that just and proper justice is rendered to the innocent person.

No less significant is what is then underlined in para 58 that:
In this regard, as discussed above, the deposition of P.W.1 clearly reveals that before the date of the first sexual intercourse of A-1 with P.W.1, which is alleged to be on 1.12.2019, she was very well aware of the fact that A-1 was married. Therefore, such being the case, the misconception of promise of marriage would not be a possibility and the same could not be brought within misconception for P.W.1 to misconstrue the same, as A-1 was well married at the crucial point of time and, therefore, the promise of marriage could not reach its logical end. Therefore, there would have been no misconception on the part of P.W.1 with regard to the promise of marriage with A-1 as her marriage with A-1 cannot go through as A-1 was already a married man. Therefore, it is clear that P.W.1 could not have had any misconception with regard to the marriage.

Be it noted, the Bench notes in para 59 that:
Coming to the second condition provided for u/s 90, that A-1 knew or had reason to believe that the consent given by P.W.1 was given in consequence of such misconception. As stated above, the marriage of A-1 before the alleged sexual intercourse is an admitted fact, which stands admitted through the evidence of P.W.1 and in the aforesaid scenario, the promise of marriage alleged to have been made by A-1 resulting in consent by P.W.1 could not have been on the basis of misconception.

It is worth noting that the Bench notes in para 60 that:
When P.W.1 knew that A-1 was already married, there could have been no misconception on the part of P.W.1 with regard to her marriage with A-1 on the basis of the alleged promise, which alone was the reason she consented to have sexual intercourse with A-1. On the crucial date, it was well within the knowledge of P.W.1 that the promise of marriage, which A-1 is alleged to have made during the period of their alleged love and thereafter, even before the sexual intercourse, could not fructify as he was already married and had begotten a child. Further, there is no material to infer that A-1 knew or believed that P.W.1 was submitting herself to sexual intercourse only on a misconception that A-1 will marry her on the basis of the promise made to her. Therefore, there could have been no misconception in this case, either for P.W.1 or for A-1 to believe that P.W.1 was under misconception of marriage with him, on account of his alleged promise and the twin conditions laid down u/s 90 IPC with regard to the tests for determining the consent given goes against the prosecution. Therefore, the prosecution has miserably failed to establish that the consent given by P.W.1 was not consent within the meaning of law.

Finally, the Bench concludes by directing in para 74 that:
For all the reasons aforesaid, the appeal must succeed and, accordingly, this criminal appeal is allowed. The impugned judgment and order of conviction and sentence imposed on the appellant for the offence punishable u/s 375/376 and 417 IPC are set aside and the appellant stands acquitted of the charges. Since the sentence imposed on the appellant was suspended pending consideration of the appeal, bail bonds executed by the appellant shall stand cancelled.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh