A Bench of Justices MM Sundresh and Rajesh Bindal said that romance gone wrong and break up of couple should not ideally result in rape cases by the women involved, especially in light of the changing moral values in the society.
The Court was hearing a plea by a man seeking to quash rape charges levelled against him by a woman who was engaged to him.
The lady stated that she was subjected to sex on the false pretext of marriage.
“If you were so gullible you would not be before us. You were a major. It cannot be that you were hoodwinked to believe that you will get married etc. With due respect, today the concept of morality, virtues is different with younger lot. If we agree with you, then any relation between boy and girl in college etc will become punishable. Suppose they love each other and girl resisted and boy says I will marry you next week and then he does not, so again offence,” the Court said.
The Court further said that such cases are often a consequence of conservative mindset.
“The conservative mind is at play because the man is blamed here. There is lacunae in our system. At times the girl launches 5 cases against her in laws. Whatever observation you want from us or to set aside High Court observation…that’s okay.. ultimately you are the victim,” the Bench remarked.
Senior Advocate Madhavi Divan, appearing for the victim, said that this was not a case of romantic relationship turning sour but an arranged marriage situation.
“This is not a romantic relationship which went sour. This is not a romantic relationship. This was arranged. The consent in the present case cannot be said to be free consent, Milord the concept of consent is important. Her engagement breaking will be a social taboo. The consent here is not free consent. She thinks that if she does not please him he may not marry her. They were engaged. It may be casual sex for him but not for the woman,” Divan argued.
“What difference does it make? Tomorrow disregarding whether married or not, marital rape can be alleged. The only fact is that marriage did not happen,” the Bench responded.
It also said that the fact that the woman had engaged a lawyer of Divan’s standing was itself proof that she cannot be considered a gullible person.
“Engaging such a senior lawyer.. we cannot say the girl is so gullible,” Justice Sundresh remarked. He said that the matter has to be looked at impartially and not just from the point of view of the victim.
“We cannot look at it from only one lens. We have no attachment to one gender. I also have a daughter and if she is also in this position I need to look it at a broader perspective. Now see (in) this case, can conviction be secured here with such weak material,” Justice Sundresh asked.
“You did accept the relationship with the option that it can be broken off some day,” Justice Bindal weighed in.
“Woman usually did not have the bargaining power. Her father had cancer and he wanted her married. The woman only wanted to please the man,” Divan responded.
Interestingly, Justice Sundresh also said that the restitution of conjugal rights provisions which force woman to stay with the husband should also be reexamined.
“I firmly believe that there should be gender parity under Hindu Marriage Act (restitution of conjugal rights). I think how can (there be) norm etc forcing the woman to stay with the man,” he stated. The Court eventually decided that it will examine the man’s appeal in detail.
Senior Advocate Geeta Luthra appeared for the accused-man.
