While ruling fully, firmly and finally in favour of the concept that consensual sex is not rape and coming to the rescue of a man for the second time as he faced accusations of rape twice from the same woman in 2018 who accused him of raping her for six years by making false promises of marriage, the Gujarat High Court in a most learned, laudable, landmark and latest judgment titled Rohit Dinanath Ray vs State of Gujarat in R/Criminal Revision Application No. 434 of 2021 that was pronounced finally on July 11, 2023 acquitted the accused in a case of false promise to marry under Section 375 of the Indian Penal Code (IPC). The case was lodged with Gujarat University police station in August 2018. It may be recalled that earlier it had quashed a rape complaint filed with Mahidharpura police station in Surat in May 2018.

While discharging the man from the case registered in Ahmedabad, the single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi had clearly, cogently and convincingly said that:
There is no ground to even assume that he has committed the offence to consider the culpable mentality of the accused. The case is of consensual sex. It must be also noted that the Bench clearly laid down that, To establish a false promise, the maker of the promise should have had no intention to uphold it at the time of giving it. The consent under Section 375 of the IPC is vitiated on the ground of misconception of fact….Since the complainant was married, she would have no intention to marry the applicant nor the applicant could have given any promise to marry her.

It is high time and now lawmakers must stop punishing men who have sexual relationship with women for years and years together because such cases turn out to be consensual and later women misuses penal laws to avenge upon men to either extract money or for some other vested purpose or under the pressure of her parents or somebody else. How long will women be treated as unable to understand what sex means that she has sex for years and years and suddenly starts crying in court that she has been raped for years and years? This open mockery and misuse of penal laws by women must definitely end now!

At the very outset, this brief, brilliant, bold and balanced judgment by the single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi of Gujarat High Court sets the ball in motion by first and foremost putting forth in para 1 that:
The applicant is the accused in the First Information Report (FIR) bearing C.R. No.I-101 of 2018 registered with Gujarat University Police Station, Ahmedabad on 24.08.2018 for the offence punishable under Section 376 of the Indian Penal Code (IPC), who is before this Court to challenge the order passed below Exhibit 11 on 20.04.2021 in Sessions Case No.350 of 2019, whereby his Discharge Application came to be rejected.

As we see, the Bench then discloses in para 2 that:
Learned Advocate for the applicant Mr. A.B. Desai submitted that in the past, the complainant had lodged FIR on 10.05.2018 against the present applicant vide C.R. No.I-73 of 2018 registered with Mahidarpura Police Station, Surat for the offence punishable under Section 376, 406 and 420 of the IPC, and in view of the settlement arrived at between the parties, on filing a Criminal Miscellaneous Application No.14650 of 2018 before this Court, by way of an order dated 07.08.2018, the FIR came to be quashed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘the Code’).

Further, the Bench states in para 3 that:
It is further submitted by learned Advocate Mr. A.B. Desai that there was no mention in the Affidavit, so filed by the complainant in the quashing proceedings, of any promise to marry her, nor was there any statement regarding returning of any money and inspite of quashment of the First Information Report, the complainant again preferred a FIR bearing C.R. No.I-101 of 2018, registered with Gujarat University Police Station, Ahmedabad under Section 376 of the IPC.

Furthermore, the Bench mentions in para 4 that:
Learned Advocate Mr. A.B. Desai stated that the complainant on her own volition had filed the Affidavit in the Quashing Petition and the offences which were registered under Section 376 and other allied Sections of the IPC at Mahidarpura Police Station, Surat were quashed and thereafter, the complainant had preferred the First Information Report before the Gujarat University Police Station, Ahmedabad, so the present applicant had filed a Criminal Miscellaneous Application No.2948 of 2018 for quashing the FIR registered with Gujarat University Police Station, Ahmedabad. The same was disposed as withdrawn, with a liberty granted to applicant for moving an application for discharge.

To put things in perspective, the Bench envisages in para 6 that:
Referring to the facts of the case, it is submitted that the complainant, a divorced woman had abandoned her husband and her children and had been in a consensual sexual relation with the applicant for a period of six years. Thus, it is submitted that Section 90 of the IPC cannot come to the aid for fastening any criminal liability on the applicant, in view of the earlier FIR been quashed under consent, read with the allegations in the present FIR, no case of any promise to marry or its breach can be made out. It is further submitted that the framing of charge would affect the personal liberty of an individual and thus, every Court even prior to framing of charge is required to apply its mind to consider the question whether there was any ground for the presumption of the offence against the accused and for that purpose, consideration of materials relied upon so as to prima-facie assert whether there are any sufficient grounds for proceeding against the accused, is required to be made.

Do note, the Bench notes in para 13 that:
The complainant is the mother of two children, when she came in contact with the present applicant, she was a married woman and during her married life, she had traveled with the applicant to different places, and according to her, since the applicant had informed the complainant’s husband about the relationship, the divorce was given by complainant’s husband. The FIR bearing C.R. No.I-73 of 2018 registered with Mahidarpura Police Station, Surat came to be quashed by consent, while in the subsequent FIR bearing C.R. No.I-101 of 2018, registered with Gujarat University Police Station, Ahmedabad, the complainant has stated that when the applicant and complainant had come to Ahmedabad to meet their Advocate for taking the certified copies, they had stayed at Hotel Audition-O at Panjrapole Cross Road, Ambawadi, Ahmedabad. The statement of Simranjit Singh Amritsingh dated 25.08.2018 recorded by the Police Inspector, Gujarat University Police Station, Ahmedabad states, on verification of the Hotel Register, that the complainant and the applicant had checked in the Hotel on 05.08.2018 at 10.40 hours and checked out on 07.08.2018, and thereafter again on 11.08.2018 at 10.00 hours in the morning they had checked in and on the very same day, they had checked out of the Hotel Room No.203. As per the FIR, the complainant on 12.08.2018 had left for Delhi to applicant’s house, she had stayed till 14.08.2018.

Be it noted, the Bench notes in para 14 that:
To establish a false promise, the maker of the promise should have had no intention to uphold it at the time of giving it. The consent under Section 375 of the IPC is vitiated on the ground of misconception of fact. The said misconception should be the basis for the victim to indulge in the said act. Here in this case, as it is noted, the complainant even during the period of her marriage, was in relation with the applicant. She had during her marriage established physical relations with the applicant. Since the complainant was married, she would have no intention to marry the applicant nor the applicant could have given any promise to marry her. The relation which the complainant established with the applicant during the existence of her marriage would be considered as ‘extra marital relation’ and according to her, the applicant had developed friendship on social media and thereafter, had entered into intimate relationship. The complainant on her volition during the subsistence of her marriage had traveled with the applicant to different places and had entered into sexual relations with the applicant. For rape to be committed, the circumstances should be falling under the seven descriptions. Here according to the complainant, she had consented for the relationship on the promise of marriage. Section 90 of the IPC clarifies that consent based on misconception of fact is not consent at all and it is the contention of the complainant that the applicant had engaged in sexual relations with her on the false promise of marriage and therefore, the complainant’s consent based on misconception of fact, i.e. promise of marriage, stands vitiated.

While citing the relevant case law, the Bench states in para 15 that:
The Hon’ble Apex Court in case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 has elaborated on the expression without her consent as well as consent given by a woman believing the man’s promise to marry her. It has been observed thus :-

14. This Court examined the scope of Section 375 IPC in a case where the facts have some resemblance with the one in hand. Reference may be made to the judgment of this Court in Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88. In that case, this Court examined the meaning and content of the expression without her consent in Section 375 IPC as well as whether the consent given by woman believing the man’s promise to marry her, is a consent which excludes the offence of rape. This Court endorsed the principle that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact. While applying this principle to a case arising under Section 375 IPC, this Court held that the consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90 IPC. This Court further held that if, on facts, it is established that at the very inception of the making of promise the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of the second clause of Section 375 IPC. In the facts of that case, this Court held, that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. The Court held that she came to the decision to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Court noticed that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act.

While citing yet another relevant case law, the Bench specifies in para 16 that, In the case of Deepak Gulati vs. State of Haryana reported in (2013) 7 SCC 675, the Hon’ble Apex Court has dealt with the expression consent and the distinction has been drawn for mere breach of promise and not fulfilling the false promise. The observations in Paragraph 21 of the said decision are quoted hereinafter :

21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

Most significantly, the Bench then very clearly points out in para 24 that, Here in the present case the complainant was a married woman, mother of two children when she developed friendship with the applicant. It appears from the facts that the applicant was knowing that the complainant was a married lady and the complainant too, being married was in relation with the applicant. At the inception of relation, there would not have been any promise to marry, for the complainant to give consent for physical relation on the basis of promise. It is not the case that, but for the false promise by the accused to marry, the complainant had given the consent to have physical relation. The complainant was very well knowing the pros and cons of the relation. It is not the case that false promise of marriage was given at the early stage, the complainant was aware of the nature and consequence of sexual indulgence. After having relation with the accused applicant for considerable long time, the complainant’s husband gave divorce to her. Thereafter too, she continued with her relationship with the accused probably with the hope of a marriage. The FIR was quashed, which was on the consent of the complainant and while withdrawing the charges, the complainant had not secured any assurance of marriage, to presume that there was any false promise of marriage thereafter to give rise for a cause to lodge an FIR for the offence of rape.

Most forthrightly and as a corollary, the Bench then minces just no words to hold in para 25 that:
In view of the facts as emerging between the parties, no case is made out against the applicant-accused and there is no sufficient ground to pursue the case against the applicant-accused. There is no ground to even assume that the applicant-accused has committed the offence to consider the culpable mentality of the accused. The case is of consensual sex.

Finally, the Bench concludes by holding in para 26 that:
Therefore, in view of the aforesaid reasons and circumstances, this Criminal Revision Application stands allowed. The order dated 20.04.2021 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in Criminal Case No.350 of 2019 is quashed and set aside. The applicant herein is ordered to be discharged in connection with First Information Report bearing C.R. No.I-101 of 2018 registered with Gujarat University Police Station, Ahmedabad for the offence punishable under Section 376 of the Indian Penal Code. Rule made absolute to the aforesaid extent. Direct Service is permitted.

All in all, the Gujarat High Court Single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi who is herself a woman has made it indubitably clear that consensual sex cannot be rape. It is really high time and our lawmakers must amend the law and make consensual sex not punishable just like it has been done in case of adultery by a five Judge Constitution Bench comprising of the then Chief Justice of India – Dipak Mishra, Justice AM Khanwilkar, Justice RF Nariman, Justice DY Chandrachud and Justice Indu Malhotra which earlier was punishable prior to the landmark judgment in Joseph Shine case delivered on September 27, 2018! There should not be anymore dilly-dallying on it as it brooks no more delay!

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