The Supreme Court (SC) bench comprising Justice R F Nariman, Navin Sinha and Indira Banerjee while acquitting the accused of raping a women on the pretext of marriage observed that, misconception of fact arising out of promise to marry has to be in proximity of time to the occurrence of the incident and cannot be spread over a long period of time coupled with a conscious positive action not to protest.

The allegation by the Prosecuterix in this case was that the accused (Maheshwar Tigga) has been promising to marry her and on that pretext continued to establish physical relations with her as husband and wife. It was also alleged that she had also stayed at his house for fifteen days during which she also established physical relations with him. The Trial Court convicted him under sections 376, 323 and 341 of the Indian Penal Code. The Karnataka High Court dismissed his appeal.

While considering the appeal, the Apex Court noted that in this case the accused belonged to the Scheduled Tribe while the Prosecutrix belonged to the Christian community. The Court also said that the letters between them, which were produced as Exhibits makes it apparent that their love for each other grew and matured over a sufficient period of time.

The Court also said that, these letters would show that the accused was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons, the marriage could not materialize as they belonged to different communities, it said. The Court said that Section 375 would apply only if the accused intentionally made a fraudulent misrepresentation from the very inception and the Prosecutrix gave her consent on a misconception of fact. It added:

“Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.”

While acquitting the accused the bench further observed that, the Prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. The consent of the Prosecutrix was a conscious and deliberated choice, as distinct from an involuntary action or denial and her deep­-seated love for the appellant lead her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.

Judgment link – Maheshwar Tigga v. State of Jharkhand