mumbai

Updated: Jan 24, 2016 00:03 IST

The Bombay high court has refused to quash an FIR filed against a 27-year-old man for allegedly raping his fiancée under the promise of marriage, ruling that the victim’s consent or voluntary participation in the act must be proved for settling such cases.

A bench of justices Ranjit More and Anuja Prabhudessai were hearing an application filed by a Pune resident seeking that the FIR filed by his ex-fiancee against him on charges of rape be quashed since she had consented to entering into a physical relationship with him.

He argued that though the woman had resisted initially, she agreed to it considering that the couple were formally engaged and were to get married soon.

The bench however, dismissed his plea holding that under the amended 2013 rape laws, the court must differentiate between “consent in the form of a freely exercised choice and consent in the form of passive submission out of fear or pressure”.

The bench cited several Supreme Court rulings to hold that “in order to constitute the offence of rape under Section 375 of the IPC, sexual intercourse must be against the will and without the consent of the victim”.

“It is now an established principle of law that the clauses ‘against one’s will’ and ‘without one’s consent’ hold different meanings and passive submission under pressure cannot be held as consent,” the bench said.

According to the FIR, the man and the victim got engaged in September 2014, in the presence of their family members and relatives. In December 2014, the victim had gone to visit him and his mother at their house. He then took her to his room and forced her to have sex “without her will and despite resistance” after assuring her that they would be getting married soon.

However, in January next year, the couple had an altercation over the delay on part of the man’s family in fixing up a date for the wedding and eventually, his family called off the wedding. The victim then filed the FIR on charges of rape and cheating.

The bench held that while it had been established that the “petitioner had sexual intercourse with the victim without her will, it remains to be seen whether this was a case of passive submission under psychological pressure, or whether the victim gave a tacit consent”.

“This question will have to be decided on the analysis of evidence and thus, quashing the FIR in respect of the offence of rape against the petitioner at this stage would amount to denying the victim a chance to prove her allegations,” the bench said.