A person recently had their conviction for rape overturned by the Calcutta High Court on the grounds that the victim, a woman who was fully grown, freely consented to having sex with the accused and that the case could not be considered one of consent obtained under duress because of an untrue promise of marriage. 

Judge Joymalya Bagchi and Justice Ajay Kumar Gupta's divisional bench made the following observations:

“ No doubt it is morally reprehensible for the appellant to desert the victim lady with whom he had entered into an informal marriage after she had become pregnant. But moral indignation cannot take the place of legal proof that the cohabitation of the parties was on the basis of a dishonest representation of 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.”

According to the prosecution, the appellant had a close relationship with the victim and had lived with her under a false pretence of being married. Additionally, it was claimed that despite assurances, the appellant did not marry the victim when she was six months pregnant and instead drove her away. The victim allegedly got pregnant and gave birth to a female child. 

The appellant sought the High Court after being found guilty under section 376/417 of the IPC. 

The petitioner argued that if it were assumed for the sake of argument that there was sexual activity between them, it should be regarded as consenting because the victim was an adult woman who had consented to such physical contact for a significant amount of time prior to becoming pregnant. No case of forced rape was thus established. 

Additionally, it was claimed that the appellant had faced a charge that was similar to this one in the past. Based on this claim, a full trial was held, and the appellant was found not guilty of the charges brought against him. 

The State's counsel stated that the earlier case was resolved as a result of a compromise between the parties. After that, the appellant made a second commitment to get married and live together. Yet, it was argued that the appellant did not wed the victim. 

The victim claimed to be 26 years old in the statement that was recorded in front of the magistrate, the court said. It noticed,

“If the girl was above 18 years of age on the date of her physical relationship and the sexual intercourse took place with her consent, the appellant cannot be held guilty of rape.”

The court further found that it appears from the victim lady's testimony that they frequently engaged in physical contact at both her home and the appellant's. “If that be so, then it would seem to be a voluntary affair between them. In that event it is difficult to hold that the offence of rape is made out.”

The court pointed:

“In her examination-in-chief, the victim stated the appellant told her that he would marry her. In fact, an informal marriage had been entered into and the appellant had put vermillion on her forehead. They continued to cohabit as husband and wife. Only after birth of child appellant did not enter into a legal marriage and drive her away. These circumstances do not establish a case of false promise at the inception of their relationship...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.”

The appellant refused to formally establish the relationship, and the court noted that the parties lived together under an informal arrangement. This refusal led to the initiation of the criminal case. As a result, the Court was not persuaded by the facts to rule that the cohabitation was based on false representation. 

As a result, the court nullified the contested verdict and trial court's ruling and ordered the appellant to be released immediately.

Case Title: Binod Banik v. The State of West Bengal & Anr.