Consent for sexual relations given under a promise to marry does not automatically constitute rape; the intention behind the promise is crucial in determining consent.

JUDGMENT :

AMIT SHARMA, J.

1. The present application under Section 438 of the Code of Criminal Procedure, 1973 (for short ‘ Cr.P.C.’) has been filed on behalf of the applicant seeking anticipatory bail in FIR No. 418/2022 under Sections 498A /406 IPC, 376, 313 registered at P.S. Ambedkar Nagar, Delhi.

2. The case of the prosecution against the present applicant as per the FIR registered on behalf of the complainant is that she was married to one Surender on 04.02.2014, and out of the said wedlock one male child namely “D” was born on 07.07.2016. Immediately after the marriage, the attitude and behaviour of the complainant’s husband and other in laws was very rude and cruel and they used to harass her for bringing insufficient dowry. It is alleged that during the said quarrel between the complainant and her husband, i.e., the applicant herein, who is the cousin brother of the previous husband of the complainant used to regularly visit the house of the complainant’s in laws and tried to win over the confidence of the complainant by consoling her that in case the complainant seeks divorce from her husband, he would marry her and also adopt the child born from the previous wedlock. It is the case of the complainant that due to persistent approaches and pleadings made by the applicant, the complainant agreed to obtain a divorce from her previous husband and accordingly, with the intervention of the common friends and relatives, a Panchayat was held amongst the family members at the residence of the complainant and written documents were executed for divorce. It is further alleged by the complainant that after the said divorce, the applicant entered into a matrimonial alliance with the complainant solemnizing the marriage with the complainant in a temple and also adopted the son of the complainant. It is the case of the complainant that the applicant who is working in Postal Department and is a government servant also got entered the name of the complainant in his official record as his wife. It is further alleged by the complainant that since 25.12.2016, the complainant started living at her parents’ house after the documents of divorce were executed with her previous husband. It is further alleged that the applicant often used to come to the complainant’s house and one day when the complainant was alone at her home, the applicant forcibly made physical relations with the complainant without her consent and that the complainant told the applicant that she will lodge a complaint against him and, thereafter, the applicant assured the complainant that he will marry her.

3. It is the further case of the complainant that in October 2017, the applicant got married with complainant and both the complainant and applicant started living together as husband and wife at different addresses from time to time i.e., from October 2017 to 02.02.2022. It is further alleged by the complainant that during the stay with the applicant, the complainant got pregnant but the applicant with some ill motive did not agree for the child and got the child aborted in the month of February, 2021 against the wishes of the complainant and subsequently, the complainant was forced to have multiple abortions under threat. It is further the case of the complainant that during this period, the applicant in connivance with the first husband of the complainant convinced the complainant to get a decree of divorce from the competent Court, wherein, the applicant got the settled amount with the complainant’s first husband for a sum of Rs. 11,00,000/- fraudulently out of which the first motion petition was filed and a sum of Rs. 5,50,000/- was paid to the complainant by way of a