the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact”
In Jayanti Rani Panda vs. State of West Bengal and another,1 the facts were somewhat similar. The accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix, he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance, the prosecutrix started cohabiting 1984 Crl. L. J. 1535 with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. A Division Bench of the Calcutta High Court noticed the provisions of Section 90 of the Indian Penal Code and concluded :-
“The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact.
But, here the fact alleged is a promise to marry I do not know when. If a full grown lady consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of I.P.C. cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.”
The same view was reiterated in Hari Majhi vs. The State2 and Abhoy Pradhan vs. State of West Bengal3.
It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact.
In the instant case, the prosecutrix was a grown up lady aged about 26 years. She was in intimacy with the appellant. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. It 1990 Crl. L.J. 650 1999 Crl. L.J. 3534 appears that the matter got complicated on account of the prosecutrix becoming pregnant.
In plethora of judgment of Supreme Court and High Court have held that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. In the instant case, the prosecutrix was a grown up lady aged about 26 years at the time of incident and she and the appellant were in physical relation. They have made sexual intercourseon several occasions in the residence of victim lady as well as the appellant. The circumstances clearly indicate that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was in love, not because he promised to marry her, but because she also desired it. The circumstances clearly show that the prosecutrix voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact.
Relying on the decisions cited above, I am of opinion that in the instant case there was no misconception of fact and the victim being a fully grown up lady voluntarily consented to having sexual intercourse with the appellant. Her evidence also reveals that they had entered into an informal marriage. The aforesaid situation makes it clear that the appellant cannot be held guilty under Section 376 of the I.P.C. or Section 417 of the I.P.C.
Ref: C.R.A. 297 of 2016 Calcutta High Court.
